January 27, 2014 Articles

Expert Testimony Part II: Presenting Expert Opinions in Narrative Form

Tips and lessons learned on how to present direct testimony of experts in narrative form in lieu of direct examination.

By Betsy P. Collins

Would it surprise you if a federal court would not allow you to conduct a direct examination of your duly qualified expert witness? If you are familiar with the practice of introducing expert opinions in written narrative that is read into evidence by the expert in lieu of direct examination, my ignorance of the practice might surprise you. However, as I learned when I encountered this procedure last year for the first time in my 28-year career, few lawyers know much about the mechanics—let alone the art—of presenting an expert opinion through written narrative. You might find the lessons this greenhorn learned helpful for use not just with the narrative procedure but also perhaps with the more traditional procedure.

Federal judges have great discretion and inherent power to conduct trials and pre-litigation in such a way as to facilitate the just, speedy, and inexpensive disposition of the action. For example, Rule 611 of the Federal Rules of Evidence gives trial courts the authority to use reasonable control over the mode of examining witnesses and presenting evidence, and Rule 16(c)(2)(D) of the Federal Rules of Civil Procedure allows trial courts to limit the use of expert testimony. Pursuant to these rules, some federal courts limit the use of expert witnesses by mandating that the direct examination of the expert be in written narrative form. I ran headlong into this practice in a case that went to trial last year.

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