Chapter 6 Procedures for Using Expert Testimony and Reports as Substantive Evidence

• Jurisdiction: United States

Chapter 6 Procedures for Using Expert Testimony and Reports as Substantive Evidence

A. Expert Affidavits and written Direct Testimony

Affidavits of witnesses are often essential in supporting a defendant's motion for summary judgment or dismissal under Federal Rule of Civil Procedure 56.²³³ In a complaint to avoid a preferential transfer, for example, the defendant may have pled an affirmative defense under Bankruptcy Code § 547(c)(2) that the payments at issue were made by the debtor in the ordinary course of its or the defendant's business.²³⁴ If the defendant is to prevail in its motion for summary judgment based on this defense, it bears the burden of proof that there is no genuine issue of material fact in dispute and that the defendant is entitled to relief as a matter of law.

Generally, this type of motion must be supported by affidavits to satisfy each of two conditions for summary judgment. An affidavit of a fact witness must be based on the affiant's personal knowledge of the relevant facts. Furthermore, these facts will generally have to be attested to by properly attached and authenticated or certified business records.²³⁵ Moreover, the attached or certified business records will have to be admissible on their face as if the defendant were seeking to have them admitted into evidence during trial. As for the expert, the affidavit in support of summary judgment must show that the expert is qualified and that the testimony will assist the trier of fact, is relevant and is reliable. Mere conclusory opinions in an affidavit about payment practices between the debtor and the defendant and/or in the relevant industry are generally insufficient.²³⁶

It should, however, be possible for an expert, such as a credit manager, factor, forensic accountant, financial advisor or industry expert, to demonstrate in an affidavit that he or she has reviewed invoices, checks and payment history between the debtor and the defendant, and that he has industry-specific experience or specialized knowledge about the payment practices within the relevant industry. The affiant will have to spell out his or her personal experience or specialized knowledge (experience, education, research, etc.) in researching, performing or supervising credit management, factoring or finance for companies in the relevant industry.

In contested motions and adversary proceedings, some bankruptcy courts allow, and in fact prefer, that the direct proofs in contested evidentiary hearings be...