Chapter IV Expert Testimony

• Jurisdiction: United States

IV. Expert Testimony

As discussed in Section I.F, the admissibility and use of expert testimony in bankruptcy court are governed principally by Federal Rules of Evidence 702, 703, 704, 705 and 104 and Bankruptcy Rule 9014. In Daubert v. Merrell Dow Pharms. Inc.,¹⁵⁹ the U.S. Supreme Court charged trial judges with the responsibility to exclude unreliable expert testimony. An understanding of the court's gate-keeping function should influence counsel in his or her trial preparations. The questions set forth in this section are just a starting point. Counsel must tailor these questions to the individual expert and subject matter.

A. Expert Qualification

Developing an expert's credentials is more than merely establishing the qualifications. The court may consider an expert's weak credentials when deciding how much weight to give to the expert's opinion. The court, in its discretion, may reject part or all of the expert's opinion. Thus, it is critical to present a thorough recitation of the expert's credentials to demonstrate that not only the expert is qualified, but also highly credible.

i. Qualifying the Expert: All Experts

Q: Please introduce yourself to the court, and state and spell your name for the record.

Q: Please describe your education.

Q: What undergraduate degrees have you received?

• Did you receive any honors?

Q: Did you do any post-graduate work?

• What was your area of concentration?

• Did you write a thesis?

• What was the topic of your thesis?

• Identify all post-graduate degrees you received.

Q: Please describe your work history.

[For each significant job]

• How many years were you employed at [employer] ?

• What title/position did you hold?

• What was your area of focus?

• What were your duties and responsibilities?

• Did you work on any specific projects?

Q: What is your current position?

• How many years have you worked in that position?

• What is your current title?

• What is your area of focus?

• What are your duties and responsibilities?

• Have you worked on any specific projects?

Q: Identify all professional certifications or licenses you have received?

[For each certification or license]

• What is the licensing or certifying body?

• When were you certified or licensed?

• Do you still hold that certification or license?

Q: Do you have any other accreditations?

Q: Have you received any awards or recognitions in your professional field?

• Please identify.

Q: Have you taught any courses?

• Where have you taught?

• For how long?

• What subject(s) did you teach?

Q: Have you published any books or articles?

[For each]

• On what subjects?

• When was it published?

• Where was it published?

• Was it peer-reviewed?

Q: Have you had any speaking engagements [in your professional field]?

[For each]

• Where did you speak?

• When?

• What was the topic?

Q: Are you a member of any professional organizations?

• What organization(s)?

• [For each organization] How long have you been a member?

• [For each organization] Explain your involvement in that organization.

• Do you hold any position in that organization?

Q: Is this a copy of your current resume?¹⁶⁰

ii. Qualifying the Expert: Valuation Expert

Q: Do you have any specialized training relating to your ability to provide a valuation opinion?

• For example, did you take any specific courses or classes, receive any accreditations, or have specific work experience?

Q: Have you ever provided a valuation opinion?¹⁶¹

• How many?

• What assets?

Q: Have you ever provided an expert opinion on [type of asset in question] before?¹⁶²

[For each:]

• What was the nature of your client's interest in the valuation opinion?

o Was your client a secured/unsecured creditor? buyer/seller?

• For each opinion, what methodologies did you apply?

• Did the court adopt your opinion(s)?

iii. Qualifying the Expert: Industry Expert¹⁶³

Q: Are you familiar with the [subject industry]?

Q: What is the basis of your familiarity with the [subject industry]?

Q: Do you have any specialized training in the [subject industry]?

• For example, did you take any specific courses or classes or receive any accreditations in the [subject industry]?

Q: How long have you worked in the [subject industry]?

Q: In what capacity have you worked in the [subject industry]?

[For each]

• Where did you work?

• How long?

• In that capacity, what were your responsibilities?

Q: Have you ever provided an expert opinion concerning the [subject industry]?

• What was the nature of the opinion you provided?

• Did you provide testimony in connection with your opinion?

• Did the court adopt your opinion?

iv. Qualifying the Expert: Accounting Expert

Q: Are you a Certified Public Accountant (CPA)?

• When did you receive your certification?

• Do you have any continuing education requirements?

o What are those requirements?
o Are you current with those requirements?

Q: Are you familiar with GAAP?

• Please describe GAAP.

Q: What is your prior experience as it relates to your retention in this case?

Q: Have you ever provided an expert opinion?

• What was the nature of the opinion you provided?

• Did you provide testimony in connection with your opinion?

• Did the court adopt your opinion?

B. Expert Investigation

i. Establishing the Expert's Investigation: All Experts

Q: When were you retained...