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

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ISBN: 9781601561756
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Expert Rules answers the most commonly asked questions about experts, such as: 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 now almost twenty years old, most attorneys' familiarity with its application hasn't changed much -- when the experts they most often see are local doctors, most attorneys still need help when confronted with new fields manned by new or unusual experts. Expert Rules provides that help and more.

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.

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Table of Contents

Table of Contents


Introduction to the First Edition

Chapter One—Finding an Expert

1.1. Experts from Any Place

1.2. Experts 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 Bases

2.2. Written Communications 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 Do Not File Reports

3.10. Contents of Expert Reports

3.11. 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 Treatises

9.4. Pacifism

9.5. Tact

9.6. Avoid Challenging

9.7. Theory Testing

9.8. Necessary Limitations on Preparation

9.9. Statements Limiting the Issues

9.10. Impeachment

Chapter Ten—Destructive Cross-Examination of an Expert

10.1. No 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 Capillary

10.9. Impeachment

10.10. The Scientific Approach

Chapter Eleven—Summary Exhibits, Visual Aids, and Demonstrations

11.1. Visual Aids, Charts, and Graphs

11.2. Visual Tricks

11.3. Have the Expert Rehearse

11.4. Get the Exhibits on 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. Exhibits as Demonstrative and Substantive Evidence

11.9. No Visuals During Cross

11.10. Review Exhibits before They Are Presented in Testimony

Chapter Twelve—More on Expert Depositions

The Daubert Deposition Dance—Retracing the Intricacies of the Expert's Steps

Appendix A—Selected Federal Rules of Evidence

Appendix B—Selected Federal Rules of Civil Procedure