Presenting Your Expert at Trial and Arbitration

• Author: David J. Galluzzo
• Pages: 175-286

3-1

PRESENTING EXPERT AT

TRIAL & ARBITRATION

CHAPTER 3

PRESENTING YOUR EXPERT AT TRIAL

AND ARBITRATION

§300 Organizing Your Trial Presentation

§310 Preparing Your Expert to Testify

§320 Qualifying Your Expert in Trial

§330 Presenting Your Expert’s Opinion

§340 Basis of the Expert’s Opinion

§350 Expert Testimony in Final Argument

§360 Experts in Arbitration Proceedings

§300 Organizing Your Trial Presentation

§300 Organizing Your Trial Presentation

§301 In General

§301.1 Voir Dire

Sample: Voir Dire Questions re Complex Expert Testimony

Sample: Voir Dire Questions Defusing Expert Testimony

§302 Mapping Out Your Expert’s Testimony

§302.1 Timing: Presentation of Your Expert’s Key Points

§303 Timing: Introducing Your Expert

§304 Calling Cumulative Experts

§305 Opening Statement

§310 Preparing Your Expert to Testify

§311 Preliminary Meeting

§312 Updating Information

§313 Documents

§314 Pretrial Drill

§315 Miscellaneous

§320 Qualifying Your Expert in Trial

§321 Stipulation as to Expert’s Qualifications

§322 Establishing the Expert’s Area of Expertise

§330 Presenting Your Expert’s Opinion

§331 Using Hypothetical Questions

§332 Demonstrative Evidence

§332.1 Introduction

§332.2 Admissibility of Demonstrative Evidence

§332.3 Foundation Requirements of Demonstrative Evidence

§332.4 Pretrial Disclosure of Intended Demonstrative Evidence

§332.5 Costs of Producing Demonstrative Evidence

§332.6 Demonstrative Evidence in the Form of Summaries

§332.7 Effect of Daubert

§332.8 Computer Animations

§332.8.1 Distinction Between Recreation and Illustration

§332.9 Objections to Demonstrative Evidence; Federal Rule of Evidence 403

§332.9.1 Challenging Opposing Expert’s Animations

§332.10 Day in the Life Videos

 QAEW 3-2

§332.10.1 Challenges to Day in the Life Videos

§333 Cross-Examination of Your Expert

§334 Increasing the Effectiveness of Your Expert Presentation

§340 Basis of the Expert Opinion

§341 Introduction

§342 Direct Information

§343 Indirect Information

§344 Determining Reasonableness

§345 Daubert v. Merrell Dow—Admissibility of Expert Testimony

§345.1 In General

§345.2 Application of Daubert v. Merrell Dow

§345.3 Augmentation of Daubert v. Merrell Dow

§344.4 Abuse of Discretion Standard in Reviewing Expert Testimony

§345A Hearsay

§346 Computer-Generated Information

§346A Public Records and Government Reports

§347 Industry Standards

§347.1 Statistical Experts

§348 Objections to Cross-Examination

§348.1 Improper Impeachment

§348.2 Exceeds the Scope of Direct Examination

§348.3 Argumentative or Inflammatory Question

§348.4 QuestionMisquotesWitness

§349 Offer of Proof

§350 Expert Testimony in Final Argument

§360 Experts in Alternative Dispute Resolution and Settlement

§361 Arbitration Hearing

§362 Selecting the Expert for Arbitration

§363 Discovery

§364 Experts in Mediation and Settlement Proceedings

3-3 PYETA §301

ORGANIZING YOUR

TRIAL PRESENTATION

§300 ORGANIZING YOUR TRIAL PRESENTATION

§301 IN GENERAL

In many cases the expert will be your primary witness and the success or failure of the case often depends

upon the expert’s effectiveness at trial. In planning for the direct examination of your expert, consider how to

present his testimony in the most favorable manner. You have some measure of control over the presentation of

your expert’s testimony at trial: the areas of the expert’s testimony that you want to emphasize, the timing of your

presentation of the expert and at what stage of his testimony you will present his opinion, and the basis for the

expert’s conclusion. Depending upon the case and the nature of the expert’s opinion, you have various options to

consider.

In your pretrial planning, reassess the theme of your case. Often a theory of liability or the nature and extent

of the damages will change from the initial interview with your client to the time of trial. Consequently you may

want to reconsider your expert’s presentation at trial to make certain that it conforms to the theme of your case.

Often the theory of a case will change during the discovery process; what was once thought to have been a crucial

issue requiring expert testimony might during the course of the trial preparation be conceded or easily established

through other witnesses.

§301.1 VOIR DIRE

Whenexpertsare tobeused duringthetrial, considerationmustbe giventothe juryprofiledesired. If

the success of your case hinges largely upon the acceptance by the jury of your expert testimony you should be

aware of the type of juror most receptive to expert testimony. If the case depends upon the juror’s understanding

of sophisticated, complex concepts obviously your preferred jury would consist of intelligent, educated jurors. If

you have an opportunity to review the jury panel list before trial, plan in advance to reject those jurors who appear

unlikely to meet your preferred jury profile.

Although jurors’ attitudes toward expert testimony vary widely, most jurors respect the opinion of a well-

qualified expert and likely will be guided by the expert’s conclusions, particularly when the subject of the testimony

is beyond the common experience of most jurors.

Often the jury’s deliberations depend upon one or two leaders on the jury. If you are successful in having

a juror who can both lead and understand the expert’s explanations, he may be able to help the other jurors

understand and be an advocate for your position in the jury room.

If your case hinges upon important expert testimony, you will want to select jurors who have the education

and training to fully comprehend the expert’s testimony. Secondly, impress upon the jurors that it will be necessary

to critically examine testimony involving complex theories and principles. The submission of these voir dire

questions may be appropriate.

SAMPLE: VOIR DIRE QUESTIONSRE COMPLEX EXPERT TESTIMONY

“Q. If selected as a trial juror will you be willing to listen very carefully to Professor Larson’s testimony?

Q. Wouldyoubewillingtoexaminecriticallythescientifictestimonyandexperimentalevidencethatwill

be offered?

Q. Wouldyoubeableto scrupulouslyandmeticulouslyweigh theevidenceofratherobtuse complicated

matters?”

If the magnitude of the case warrants it, consider retaining a service that provides a mock or sample jury to

test the effectiveness of your expert’s theories. In most metropolitan areas there are firms that will select a sample

jury panel composed of individuals from the same type of panel from which the trial jury will be drawn. Thus,

you can submit your expert’s proposed testimony to the mock jury to pre-determine the reaction to the expert’s

proposed testimony. Similarly, services may be available to prepare questionnaires and surveys that assist you in