Chapter 9 The End Is Nigh

• Jurisdiction: United States

Chapter 9 The End Is Nigh

Daubert signaled a sea change in the way federal courts address expert witness testimony. No longer approaching expert testimony from the perspective of deference to the relevant expert community, courts must assess whether the qualified expert is providing testimony that (1) will assist the trier of fact, (2) is relevant and (3) is reliable. Although numerous factors have been generated to aid the court in this critical task, the overriding thrust of the dual requirements of reliability and relevance in Daubert is as clear as the requirements are sensible.

First, relevance tests the nature of the fit between the expert testimony offered and the issues in play against the general threshold of expert admissibility: Will the testimony offered assist the trier of fact? Relevance itself requires an understanding of the precise question being asked. Moreover, the requirement of relevance ensures that the fit among the facts, the methodology and the opinion is reasonable.

Second, reliability ensures that an expert's assumptions, exercises in discretion, adjustments, methodology, process and results square with the requisite skill, training or experience that experts in the relevant field possess. A subjective opinion, or an opinion based on subjective metrics or variables or adjustments, may be reliable. We offer another name for subjectivity as exercised by experts: experience. Courts must refrain from confounding subjectivity with conclusory, or uncertainty with unreliability. Valuations in dispute are estimates grounded in the exercise of professional judgment. They naturally contain within them some level of uncertainty. This multi-pronged approach to admissibility responds to the natural inquiry of whether the expert knows whereof he speaks.⁶³⁷

Unfortunately, some practitioners and courts have confounded the Daubert requirements with ultimate persuasiveness. Relevant and reliable opinions may be ultimately unpersuasive. It is the nature of disputes that one side wins and another loses. Excluding expert testimony because a court finds that testimony unpersuasive or because it finds facts in dispute that are inconsistent with the expert's factual assumptions is a misapplication of Daubert.

Federal Rule of Evidence 702 and Daubert slay once and for all the myth that in a bankruptcy case, evidentiary rules are mere "suggestions" and that an expert's "guesses" and "hunches" will be admitted and "given the weight they deserve." A hunch...