Federal Practice Manual for Legal Aid Attorneys: 6.8.0 Determining the Need for an Expert
Section 6.8 updated 2014 by Alice Nelson, 2023 by Howard A. Belodoff
Section 6.8 updated 2014 by Alice Nelson, 2023 by Howard A. Belodoff
Under Daubert and Kumho Tire, only relevant and reliable expert opinion testimony is admissible. The requirement that the testimony will assist the trier of fact, under Daubert, “goes primarily to relevance.”3088 “Expert opinion testimony is relevant if the knowledge underlying it has a ’valid . . . connection to the pertinent inquiry.’”3089 “Relevancy simply requires that ‘[t]he evidence ...
District courts are required to make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”3095 The purpose of the inquiry into reliability is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."
An expert’s testimony alone is not enough to establish reliability. Some other indicia of reliability must be proffered.
An expert may offer an opinion and the reasons for it without first disclosing the underlying facts or data unless ordered by the court or during cross examination.3144 Federal Rule of Evidence 703 provides: “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.
Federal Rule of Evidence 702 requires that the evidence offered by the expert must “assist the trier of fact either to understand the evidence or to determine a fact in issue.”3158 The requirement that the opinion evidence assist the trier of fact “goes primarily to relevance.”3159 Expert testimony assists the trier of fact when it addresses issues that are typically matters that are beyond the understanding of the average lay person.3160 Exp
A party must disclose “the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.”3162 Unless ordered by the court of otherwise stipulated between the parties, under Federal Rule of Civil Procedure 26(a)(2)(B), this disclosure “must be accompanied by a written report – prepared and signed by the witness - if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.”
Federal Rule of Civil Procedure 26(b)(4) protects drafts, regardless of the form, of any expert reports or disclosures required by Rule 26(a)(2).3181 Communications, regardless of their form, between the attorney and any expert required to provide a report, are generally protected from disclosure with limited exceptions.3182 An opposing party may only seek disclosure of communications between the attorney and the expert if it relates to the expert’s compensation; the facts and data that the
As a function of the court's duty to expeditiously manage trials by eliminating inadmissible evidence, the United States Supreme Court has stated that courts have the inherent power to provide for filing of motions in limine and deciding such motions.3184 Federal Rule of Evidence 103(d) provides, in cases tried to a jury, that a court should, “to the extent practicable,” prevent inadmissible evidence from being suggested to the jury.3185 Motions in limine provide the trial
The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case….”3193 Relevance encompasses any matter that “bears on,” or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case.3194 District courts have broad discretion to determine relevancy for discovery purposes.
Concerns about whether to appeal often mirror the questions raised when litigation is first contemplated, while the process of appealing differs greatly from district court litigation. This section focuses primarily on the procedural aspects of an appeal, with some attention paid to the internal inquiry regarding the strategy of appealing. The substantive aspects of brief writing and oral argument are not discussed in this Section.3203
Deciding whether to appeal an adverse decision involves balancing a host of potentially competing factors. Obviously, the clients’ needs and desires are at the top of the list.
The first step in an appeal is filing a notice of appeal.
Most appeals are resolved after full briefing and, if granted, oral argument, with each court having different policies and procedures for those activities.3302 The content and form of the briefs and of the appendix to the briefs are set out in detail in Federal Rules of Appellate Procedure 28, 30, and 32, and local rules of court.3303 Because local practice often differs on these important aspects of appellate practice, they are not discussed here.330
Appeals are generally heard by a three-judge panel,3315 and the panel’s decision is usually the end of the road for that appeal. However, practitioners should be aware of options that are available in unusual cases.
Section 7.2 updated 2017, 2023 by Sarah Somers
Rules 23(a) and (b) of the Federal Rules of Civil Procedure govern the requirements for class certification. Rule 23(a) sets forth four threshold requirements for class certification, each of which must be met:
Section 7.3 updated 2017, 2023 by Sarah Somers
Section 2.3 updated 2016, 2023 by Jeffrey S. Gutman
Section 2.4 updated 2016, 2023 by Jeffrey S. Gutman
Two other jurisdictional statutes include those involving diversity jurisdiction and declaratory judgments. The first is less commonly used in legal services practice. They are discussed briefly below.
Section 2.7 updated 2015, 2023 by Jeffrey S. Gutman
Section 7.0 updated 2017, 2023 by Sarah Somers
Once the class has been certified, counsel must decide whether notice to class members of class certification is required or desired and, if so, the type of notice called for3725 and whether notice of opt-out rights is required for their particular class action.
Judgments may be entered on the basis of litigated decisions,4376 by agreement, or by some combination of the two. For example, courts commonly decide whether defendants violated a legal duty to plaintiffs and urge the parties to agree on a remedial order. In the absence of agreement, both parties may submit their proposed orders. The remedial order itself may also be partially agreed upon and partially litigated, with unresolved issues submitted to the court for determination.
Federal Rule of Civil Procedure 65 governs motions for temporary restraining orders (TROs) and preliminary injunctions, both of which are mechanisms for obtaining interim relief before a case is fully litigated, often to prevent irreparable injury to plaintiffs.
In essence, a Section 1983 due process claim asserts that: