Special rules apply to the admissibility of expert testimony, in large part because an expert witness’s opinion can be admitted into evidence, while opinion statements made by most other witnesses are excluded. Admissibility of expert witness testimony is determined by a court’s rules of evidence: Federal Rule of Evidence 702 in federal courts and state rules in state courts. The federal rule provides:
The Daubert test places federal courts in the role of gatekeepers, often requiring an exacting defense of the expert’s methodology before the testimony can go to the jury, particularly when the testimony is highly technical.430 This defense can be required even when the expert is relying on widely accepted techniques. The Daubert standards must be met even in bench trials.431
Under Federal Rule of Evidence 702 a witness qualified as an expert by knowledge, skill, experience, training or education may present expert testimony if “(b) the testimony is based upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the witness has applied the principles and methods reliably to the facts of the case.”446
Federal Rule of Civil Procedure 26 requires that a party disclose to other parties in the action the identity of any expert accompanied by a written report prepared and signed by the expert.
Failure to hold a live pre-trial Daubert hearing may be an abuse of the trial court’s discretion, depending on the state of the record.471 The proponent of the expert’s testimony bears the burden of going forward and must present at least a prima facie case that the expert’s testimony is admissible. Whether the burden then shifts to the opponent, and which party ultimately bears the burden of persuasion, is unclear.472
A Daubert challenge may be made at different points during litigation: (1) in discovery, (2) at the class certification stage,474 (3) at summary judgment, (4) by a stand-alone “Daubert motion” as part of a motion in limine, or (5) at the pre-trial conference.
The consumer’s expert witness should be prepared to explain and justify the expert’s inspection and analysis of the defects, explaining the methodology and reasoning at every step of the inspection and accounting for all alternative explanations for the product’s problem. For many experts a set of diagnostic or investigatory procedures is so ingrained that they will not be able to explain why they take those steps without some research. The expert should be prepared to refer to industry standards, such as a repair manual or a repair database, whenever possible.
The first rule for cross-examining the opponent’s expert is to know the expert. Review the expert’s resume, written work and testimony on prior occasions. Consider retaining a consulting expert to evaluate the report of the opponent’s expert. Find out as much as possible about the expert’s credentials, opinions, and testimony in prior cases through interrogatories, pre-trial disclosures, depositions, and internet searches.
Sometimes cross-examination of the opponent’s expert witness can be used to support the consumer’s own case. Supportive testimony by the opponent’s expert is particularly helpful to point to in closing argument. Any supportive cross-examination should be done before any cross-examination that seeks to discredit other portions of the expert’s testimony.
Techniques to bring out supportive testimony from the opponent’s expert witness include:
When seeking to discredit the opposing expert on cross-examination, the cross-examiner should avoid reviewing and repeating areas of harmful testimony already covered on direct examination. Arguing with the expert in front of the jury is also rarely effective.
Effective techniques for discrediting the opposing expert through cross-examination include:
The facts of the case and the applicable rules of law must be placed in the context of the law’s policies. The court should be shown why the result sought by the buyer is fair and logical.
The reasonableness of the buyer’s conduct should be stressed. Reasonable conduct is a foundation for much of the UCC, other statutes and the common law. Many obligations under the Code are based on reasonable conduct:
Many experienced practitioners begin drafting their jury instructions at the outset of the case, or even before filing. Having draft jury instructions at hand helps organize and focus discovery and trial preparation. One source of sample jury instructions is reported appellate decisions upholding the trial court’s instructions.492 Sample jury instructions may be found in Word format as companion material to the digital version of this treatise.
Live weblinks can be found in the online version of this appendix.
(Including GM and Chrysler Bankruptcy Entities)