Testifying Flashcards
Although expert witnesses can base their testimony on publications reasonably relied upon by experts in the particular field, experts cannot base their testimony on publications deemed inadmissible by the court. T/F
False
Under Rule 703, experts can rely on inadmissible hearsay or other inadmissible evidence as long as it is the type reasonably relied upon by experts in the particular field—a determination that is left to the discretion of the trial judge. This rule allows an expert to employ data usually used by experts in the field, though the data itself may not be admissible. For example, an expert may rely on a table of interest rates taken from a Department of Commerce publication even if the table is not admissible. Similarly, an accountant serving as an expert witness may rely on private sources in forming an opinion if such sources normally are relied upon by accountants.
Able, a Certified Fraud Examiner, has just finished testifying on direct examination. During cross-examination, the opposing counsel attempts to make Able feel safe by asking questions that do not seem to attack his credibility. What best explains why opposing counsel might try to make Able feel safe during cross-examination?
Opposing counsel might seek to lull the witness into a feeling of false security by not attacking him, but then—after the witness feels safe—find a small hole in the testimony that can be enlarged quickly. This approach is often characterized by being friendly and conciliatory, by which the jury is made sympathetic to the cause of the opposing counsel. Opposing counsel also might attempt to achieve a certain amount of association with the witness that will make the witness want to help the opposing counsel to bring out information. Doing so might result in the witness giving information that otherwise would not have been given. With this additional information, it might be possible to find a chink or hole in the evidence and open it further.
Can expert compensation amount be brought up by opposing counsel?
Compensation for expert testimony services is an industry standard, and is not generally considered a conflict of interest. The amount of compensation can be brought up by opposing counsel at trial, so the payment should not be above normal.
Which of the following types of questions is an expert witness most likely to be asked during direct examination?
Direct examination is the initial questioning of a witness by the side that called the witness. Most of the time, direct examination is a nonconfrontational questioning aimed at exposing the facts and issues of the case. Because experts are hired for their opinions, they are not subject to the usual restrictions about statements of judgment.
Expert witnesses present their findings in various ways, such as narratives, hypotheticals, specialized materials, and special exhibits. Experts are commonly asked to answer narrative questions, which are all but forbidden to lay witnesses. Narrative questions are broad, open-ended questions that allow experts to present their opinions in their own words with minimal prompting from the lawyer. Fraud cases, with their divergent paths of activity and intrigue, can require complex summarizing for the facts to make any sense. The average group of jurors has never considered how someone could manipulate store inventories to drive up the company’s stock price and then make millions on the phony surge. The expert witness in cases dealing with such issues often will begin testimony by recounting the narrative background of a case, the tests and experiments that were performed during the investigation, and a summary of the findings based on his professional expertise.
On direct examination, an attorney wants to ask questions that the expert is comfortable answering, so compound (two-part) and hostile questions do not generally occur in this process. Additionally, it is generally objectionable for leading questions to be asked during direct examination of the expert (e.g., “The results were negative, weren’t they?”).
How might opposing counsel attempt to take psychological control of a witness?
Opposing counsel might attempt to take psychological control of a witness by:
Using physical presence to intimidate
Making nonstop eye contact
Challenging space of the witness
Asking questions at a fast pace to confuse the witness
Not allowing the witness to explain or deviate from the exact question
It is not the witness’s job to argue with or challenge opposing counsel. The witness should simply try to get through the cross-examination in the most professional way possible. If opposing counsel uses blatantly unfair practices, the jury will take note and such practices may hurt the opposing side’s case. In no circumstances should the witness argue with opposing counsel. The counsel who called the witness is tasked with objecting to questioning that is improper, so the witness should continue with answering the questions until an objection is made, and then follow the court’s directions.
What are two basic kinds of testimony?
There are two basic kinds of testimony. The first is lay testimony (sometimes called factual testimony), where witnesses testify about what they have experienced firsthand and their factual observations. The second kind is expert testimony, where a person who, by reason of education, training, skill, or experience, is qualified to render an expert opinion concerning certain issues at hand. A lay witness (or fact witness) is anyone who provides nonexpert testimony. Note, however, that an expert witness might also provide lay testimony.
Typically, a fraud examiner who worked on a case will be capable of providing lay testimony based on observations made during the investigation. When a trial involves issues that are complex or unfamiliar to most people, as is common in incidents of fraud, expert testimony is appropriate to help the judge and jury understand these issues.
Rule 26 of the Federal Rules of Civil Procedure requires certain disclosures concerning people who might be used as expert witnesses at trial?
Rule 26 of the Federal Rules of Civil Procedure requires certain disclosures concerning people who might be used as expert witnesses at trial. The rule applies to experts who have been retained specifically for a given case, and it includes employees of a party if part of the employees’ duties involves giving expert testimony. A written report must be produced for each expert witness. The report must be prepared and signed by the witness and must include the following:
A complete statement of all opinions to be expressed and the basis and reasons for such opinions
The data or other information considered by the witness in forming the opinion
Any exhibits to be used as a summary of or in support for the opinions
The qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years
The compensation to be paid for the witness’s study and testimony
A listing of any other case in which the witness has testified as an expert at trial or by deposition within the preceding four years
Are draft reports of experts hired to testify discoverable?
Before December 1, 2010, draft reports—preliminary reports that attorneys requested from experts hired to testify—were discoverable. Such preliminary reports would often reflect the parties’ mental impressions of the case, which might reveal sensitive information. As a result, attorneys would usually hire one “consulting expert” (a nontestifying expert witness whose draft report was not discoverable) and later retain a testifying expert witness. Of course, this process ended up costing more time and money than hiring just one expert. Therefore, Rule 26 was amended to make draft reports protected under the work product doctrine.
The amendments to Rule 26 also extended work product protection to most communications between experts and attorneys relating to the report. However, there are a few exceptions to this protection. The following communications are not protected by Rule 26(b)(4):
Communications relating to compensation for the expert’s study or testimony
Communications that identify facts or data that the party’s attorney provided and the expert considered in forming the opinions
Communications that identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions
At a trial, an attorney asks an expert witness “Could you please tell us about the background of this case?” or “What procedures did you perform in your examination?”
This question is most likely being presented as part of direct examination of the witness. T/F
Direct examination is the initial questioning of a witness by the side that called the witness. Most of the time, direct examination is a nonconfrontational questioning aimed at exposing the facts and issues of the case. During direct examination, expert witnesses present their findings in various ways, such as narratives, hypotheticals, specialized materials, and special exhibit
For example, during a direct examination, counsel for the party presenting the expert witness would likely ask open questions such as
What are the parts of the Daubert criteria to assess the reliability of expert testimony?
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court set forth the following nonexclusive list of factors to assess reliability:
Whether the expert’s theory or technique can be or has been tested
Whether the expert’s theory or technique has been subjected to peer review and publication
Whether the expert’s theory or technique enjoys general acceptance within the relevant scientific community
Whether there are standards governing the method used by the expert
Whether the expert’s technique has a high error rate
