Presenting Your Expert at Trial and Arbitration

• Author: David J. Galluzzo
• Pages: 159-266

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Chapter 3

Presenting Your Expert at Trial

and Arbitration

§300 In General

§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

§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

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§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

§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

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§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 con-

trol 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 con-

clusion. 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 inter-

view 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 con-

ceded 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 intel-

ligent, 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 testi-

mony 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 tes-

timony, 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 reac-

tion to the expert’s proposed testimony. Similarly,

services may be available to prepare questionnaires and

surveys that assist you in recognizing the strengths and

weaknessesoftheexperttestimony.Whatmightappear

to you as very convincing expert conclusions may not

be regarded as particularly important by the jury.

If the adversary’s case (but not your own) is

dependent upon the acceptance by the jury of expert

opinion you may want to impress upon the jury at

the outset that they are not required to accept with-

out qualification the expert’s testimony. You might