If you’ve been litigating for any amount of significant time, you probably know this feeling: you and your team have prepared your arguments, worked with witnesses and reviewed evidence, and spent enough time internally going over the merits of your case, that you’re near sure you have a bulletproof case. Only to find that it all goes down in flames at summary judgment or in front of a jury.
It can be the same with expert witnesses and their testimony and/or reports. Tens of thousands of dollars and countless hours can be spent working with an expert witness whose testimony and report are the linchpin of your client’s claims or defense, only to have the expert’s testimony and report ruled not admissible at trial. Obviously, the earlier you can determine that an expert witness will not be accepted as credible by a judge, the more opportunity you will have to readjust your strategy towards a more credible approach.
Will Your Expert Witness’ Testimony be Admissible?
Before a jury can even weigh your expert witness’ testimony, a judge will have to determine that it is admissible. Federal courts evaluate expert testimony on a standard referred to as the Daubert standard, while state courts primarily use either the Daubert standard or the Frye Standard (with a handful of states incorporating similar but distinct standards).
When the Daubert standard is applied, judges will apply the following four questions in evaluating the methodology relied upon by the expert and applied to the facts of the case:
Has the methodology been tested?
Are there known rates of error?
Has the methodology been generally accepted?
Has the methodology been subject to peer review?
Clearly the testifying expert will argue that the answer to all of these questions are “yes,” which is the outcome that you as the attorney are hoping for as well, but a judge will want to know whether unbiased, impartial authorities in the scientific community can answer “yes” or “no” to these questions as well.
A judge may or not have access to those authorities, and may be relying on the research of law clerks or the arguments of your opposing counsel in determining admissibility. By providing the court with your own authoritative, impartial scientific resources showing that the testimony does meet the Daubert or Frye standards, you can educate the court and counter opposing arguments.
How to Create Your Daubert/Frye Argument Prior to Trial
By working with leading scientific authorities to impartially review your expert witness’ testimony and reports prior to trial, you can accomplish two important tasks: 1) learn how well your expert witness will stand up to scrutiny in a privileged, confidential manner, prior to your experts being scrutinized by the court and the opposing parties, and 2) use the peer review provided by those impartial scientific authorities to bolster your argument for the admissibility of your expert witness in a Daubert challenge or similar admissibility challenge.
At JuriLytics we work with parties and counsel to make sure that their expert testimony and reports are as compelling as possible in order to meet all applicable federal and state standards for admissibility. We do this by enlisting top academic talent in respective fields to provide an impartial review of expert reports with specific questions tailored to the facts of a given case. We work with attorneys to draft whatever work product is suitable in a given matter and to provide ongoing support with expert witness testimony and reports throughout litigation.
Call us today to see how we can help in your matter.