1. The Best Defense Is a Good Offense—Vet Offered Experts Thoroughly
Before offering any expert witness on behalf of a client, a new lawyer will likely be tasked with researching the credentials of potential expert witnesses, including, but not limited to, an expert witness’s education, experience, testimonial history, and publication history. Knowing the potential weaknesses of an expert’s background can help your client guard against Daubert challenges early by picking the right expert to avoid impeachment issues, or by allowing you to minimize the offered expert’s weaknesses through the expert’s report and opinion, or other testimony.
In addition to consulting publicly available resources, such as search engines, libraries, and scholarly publications, new lawyers should consult online legal research databases where resources permit to run reports on a potential expert’s testimonial history and credentials. Legal research databases often allow attorneys to run reports that identify prior Daubert challenges raised against an expert and the outcome of those challenges (i.e., whether the challenges were successful and what the circumstances of those challenges were). Additionally, if the expert has previously been challenged, those prior motions can provide a roadmap of areas to avoid, reinforce, or specifically bolster in the expert’s report.
After comprehensively vetting each potential expert, the litigation team can select the best expert. The team can formulate a strategy to counteract any perceived weaknesses that might be raised via a Daubert challenge, particularly regarding any prior challenges or the expert’s credentials.
2. Research Standards and Methodologies Commonly Used and Accepted by Courts in Similar Fact Patterns
New lawyers can also assist with defending against Daubert challenges by thoroughly researching expert methodologies that have been previously accepted by courts in similar situations. If a court has previously accepted a methodology that your expert expects to use, this will demonstrate that the methodology is reliable and commonly accepted in the expert’s given field. In contrast, if a certain methodology has not been accepted by a court as reliable, your client will face a more difficult battle in arguing the Daubert factors and defending against a Daubert challenge.
New lawyers should begin researching commonly used expert methodologies by consulting the leading legal treatise in relevant areas of law. Often, treatises will have sections regarding expert witnesses that identify relevant expert methodologies that have previously been accepted (or rejected) by courts.
3. Highlight Your Expert Witnesses’ Credentials
Once your team decides to work with a particular expert to support your client, new lawyers can further assist in fending off Daubert challenges by highlighting your expert’s relevant credentials wherever appropriate. An attorney may want to marshal facts about the expert’s credentials and disclose them, even if they exceed the required disclosures under Federal Rule of Civil Procedure 26.
For example, your proffered expert may have written the foremost scholarly paper regarding the relevant field at issue 12 years ago, which would exceed the 10-year period of required disclosure for publications; while not required, disclosing this publication demonstrates and highlights the expert’s qualification as an expert in the subject matter. Likewise, your team may choose to disclose other actions in which your expert testified outside of the four-year period required by Rule 26 if a jury or court adopted your expert’s opinion in a preeminent case that occurred six years ago.
Additionally, as part of the work preparing your expert witness to testify in a deposition or during trial, the expert should be prepared to explain how his or her credentials are relevant to the opinion they are offering in the case and how their credentials may have impacted the methodology they used.
4. Point Out the Timing of the Daubert Challenge
If a Daubert challenge is made at a late stage in the litigation, you may be able to overcome the challenge by arguing that your adversary has raised the issues too late in the proceedings. Accordingly, it’s imperative that a new lawyer be aware of any applicable deadlines regarding the filing of Daubert challenges. Some courts set deadlines for filing Daubert challenges as part of the scheduling order, while others may only provide a general deadline for motions in limine. Each district court, or even the individual practices of the judges, may have unique timing requirements for challenging expert witnesses, and new lawyers can assist their team and client by being aware of any applicable deadlines.
Even where there is no specific deadline for raising Daubert challenges, new lawyers should be aware of any caselaw within the applicable district where the court denied Daubert challenges as untimely. Some courts have held that Daubert challenges made after the close of an opponent’s case placed the non-movant at a severe disadvantage, requiring the challenges to be denied.
5. Highlight Why the Expert’s Testimony Is Relevant and Will Aid the Fact Finder
After you’ve marshaled the expert’s relevant credentials and have researched methodologies that have been previously found reliable, one of the best ways to guard against a Daubert challenge is to identify why the expert’s testimony is relevant to a dispositive issue in the litigation and how the expert’s testimony will help the fact finder. Keeping the expert focused on that role will stave off challenges. Then, if challenged, ensure that you can simply state that relevance to the court in layman’s terms, even if the expert provides very technical testimony.
Another important part of overcoming challenges during motion practice is demonstrating how the testimony will aid the fact finder, including that the expert’s testimony is unique and not duplicative of another witness in the litigation.
With these skills, even new lawyers will quickly find a strong voice in guiding clients through expert discovery despite inevitable expert challenges. Expert witnesses may seem a daunting responsibility at first, but keeping all these suggestions in mind should guide any attorney to success.
