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Expert Rules: 100 (and More) Points You Need to Know About Your Expert Witnesses

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Expert Rules answers the most commonly asked questions about experts: How do you approach an expert problem? What is the impact of Daubert on expert preparation, direct, and cross? How do you structure direct examination of an expert? How do you avoid fatal blunders when you prepare an expert?

Even though Daubert is almost twenty-five years old, most attorneys are only familiar with its application to the experts they see most—local doctors.

Expert Rules provides attorneys with the help they need to confront new fields manned by new or unusual experts.

This concise, easy-to-follow guide provides practical and in-depth information on how to deal with an expert—from finding the expert, to helping the expert prepare her report, deposing and defending the expert, conducting expert direct and cross-examination, and helping the expert prepare factual, informative, and persuasive testimony.

And this fourth edition contains new rules and strategies for experts, including strategies for preparation, mining the Internet in discovery, using exhibits, highlighting key points on direct, and more effective cross-examinations.

Featured Authors

Table of contents

CONTENTS

Introduction

Introduction to the First Edition

Chapter One: Finding an Expert

1.1  Experts from Any Place
1.2  xperts from Inside the Organization
1.3  Experts from Outside
1.4  Local and Distant Experts
1.5  Local Standard of Care
1.6  High Rates and Low Cost
1.7  Personable Experts
1.8  Hands-On Experts
1.9  Scientific v. Technical Experts
1.10  Contrast between Experts
1.11  Quantitative Adequacy of Data
1.12  Nonexperts with Opinions

Chapter Two: Feeding an Expert
2.1  Decisions on
2.2  Written Communication to the Expert
2.3  Written Communications from the Expert
2.4  Discoverable Communications
2.5  Undisclosed Facts
2.6  Expert’s Bills
2.7  Support Staff for the Expert
2.8  Similar Engagements
2.9  Communication between Consulting and Testifying Experts
2.10  Contracting with the Expert
2.11  “Evidence War Room”

Chapter Three: Expert Reports
3.1  Expert Disclosures
3.2  Authorship of Expert Reports
3.3  No Report Stipulations
3.4  Inadmissibility of Expert Reports
3.5  Timing of Expert Reports
3.6  Supplementing Expert Reports
3.7  Rebuttal Expert Reports
3.8  Depositions and Expert Reports
3.9  Expert Witnesses Who Must File Expert Reports
3.10  Expert Witnesses Who Do Not File Reports
3.11  Contents of Expert Reports
3.12  Expert Report Information as a Floor

Chapter Four: Nondeposition Discovery about an Expert
4.1  Expert’s Background
4.2  Prior Testimony
4.3  Advertising by Experts
4.4  Inquiries in the Relevant Field
4.5  Reliable Authorities and Learned Treatises
4.6  Attorneys Who Opposed the Expert in the Past
4.7  Visual or Summary Exhibits from Past Cases
4.8  Public Appearances
4.9  Internet Information
4.10  Peer-Reviewed Publications

Chapter Five: Preparing an Expert to Be Deposed
5.1  Timing
5.2  Use of Notes
5.3  Reduce the Expert’s Anxiety
5.4  The “Seven Best Answers”
5.5  Support for the Curriculum Vitae
5.6  Foundation for Learned Treatises
5.7  Protective Orders on Related Engagements
5.8  Legal Standards for Testimony
5.9  Document Review and the Expert as a Summary Witness
5.10  Advocacy by the Expert
5.11  Making Affirmative Statements
5.12  Burden of Showing Reliability

Chapter Six: Deposing Expert Witnesses
6.1  The “Ten-Question Deposition”
6.2  Material Not Relied On
6.3  Opinions of Other Experts
6.4  Selection of Material Considered
6.5  Daubert Questions
6.6  Assistants to the Experts
6.7  Discovering the Opinions and Bases
6.8  Les Assumptions Dangereuses
6.9  Ignorance Is a Tool
6.10  Professors and Teachers as Experts
6.11  Existence and Identity of Learned Treatises

Chapter Seven: Admissibility of Expert Testimony
7.1  The Gatekeeper
7.2  Motions in Limine, Objections, and Voir Dire
7.3  Application of Daubert Criteria
7.4  “Scientific” vs. “Technical or Specialized”
7.5  “Scientific” vs. “Nonscientific”
7.6  Motion in Limine to Admit Expert Opinions
7.7  Challenge to Admissibility
7.8  The Evidentiary Dichotomy
7.9  Inadequacies in the Report
7.10  Timing, Rebuttal, and Sandbagging in Reports

Chapter Eight: Direct Examination of an Expert
8.1  Introduction of the Expert
8.2  The Tickler
8.3  Credentials and Relevance
8.4  Tenderizing the Expert
8.5  Presenting the Opinion
8.6  Presenting the Bases
8.7  Anticipation of Cross-Examination
8.8  Redirect and Wrap-Up
8.9  Visual Aids—Pictures, Not Words
8.10  Supporting the Expert

Chapter Nine: Constructive Cross-Examination of an Expert
9.1  Priority
9.2  Points of Agreement
9.3  Foundation for Learned Treatise
9.4  Pacifism
9.5  Tact
9.6  Avoid Challenging
9.7  Theory Testing
9.8  Necessary Limitations on Preparation
9.9  Statement Limiting the Issues
9.10  Impeachment

Chapter Ten: Destructive Cross-Examination of an Expert
10.1  Walking and Talking
10.2  Closed Questions
10.3  The Beginning
10.4  The End
10.5  The Middle
10.6  Small Steps
10.7  New Facts
10.8  The Instinct for the Capillary
10.9  Impeachment
10.10  The Scientific Approach

Chapter Eleven: Summary Exhibits, Visual Aids, and Demonstrations
11.1  Use Visual Aids, Charts, and Graphs
11.2  Use Visual Tricks
11.3  Have the Expert Rehearse
11.4  Present Exhibits with Video
11.5  Cross-Examine with Opponent Expert’s Exhibits
11.6  Get Your Expert in the Picture
11.7  No Live Demonstrations
11.8  Use Exhibits as Demonstrative and Substantive Evidence
11.9  No Visuals During Cross
11.10  Review Your Expert's Exhibits before They Are Presented in Testimony

Chapter Twelve: More on Expert Depositions

Understanding How Daubert Drives Deposition Strategy: Unpacking Expert Bases

Appendix A: Selected Federal Rules of Evidence

Appendix B: Selected Federal Rules of Civil Procedure