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Challenging Expert Witness Testimony Bankruptcy Litigation

Challenges to the testimony of an expert witness occur often when the opposing legal team wants to try to disqualify the expert for the case, and in bankruptcy litigation, this is often important for the company. However, the rules work primarily the same for each case where the expert must have relevance in the subject matter and reliability in testing methods.

When one lawyer challenges the testimony of an expert witness’ testimony, it may occur at more than one point in the case. He or she may do so while a judge is present to determine if the expert will remain as a designated expert witness for the claim in a lawsuit where the credentials of the professional receive various questions. Additionally, the lawyer may bring forth a Daubert Challenge to question the relevance or reliability of the expert’s testimony or testing methods. This may lead to a failure to pass the test where the expert loses his qualification in the case and his or her testimony is no longer admissible.

Why the Expert Needs Challenging

If the expert uses processes, methods or procedures that are not valid or have no reliability, it is the right of the opposing lawyer to challenge his or her testimony and testing methods. The tests
must remain reliable with a low error rate, or the tests are not legitimate. This could invalidate the lawyer’s case if he or she is using the testimony as for the basis of his or her argument. If the tests do not pass peer review, have no or little standing in the scientific community or cannot reach a reliable error rate, the expert may not remain on the case.

The Bankruptcy Litigation

The rules of bankruptcy require the person to need either a complete financial overhaul with Chapter 13 where the individual pays back some or all of his or her debts through a repayment plan that could take up to five years. The other type is Chapter 7 where the entirety of debts usually clear after a few months with the help of a bankruptcy department. Some individuals take part in bankruptcy fraud which usually leads to an investigation and charges filed against the applicant. Other cases may include a company suing the person to regain funds. However, these processes generally halt at the moment bankruptcy starts.

If an expert becomes necessary, he or she may need to explain the process and any complications that may arise during the procedure. Challenging his or her testimony may need the opposing lawyer to understand the Daubert Challenge and how it plays a role in invalidating the testimony of the expert. If everything the professional stays, analyzes or speaks in the courtroom has a full connection to relevance to the subject matter and reliable testing or scientific methods, the expert will generally pass the challenge. It is only finding inconsistencies or a lack of association to the bankruptcy litigation materials that the challenge will succeed.

The Challenge to the Expert

Bankruptcy litigation is not the same as other types of lawsuits due to the less formal setting through a contested matter rather than a courtroom situation. Additionally, the Federal Rules of Civil Procedure and even expert disclosures do not exist in the same context unless the courts specifically order them to have a bearing. To challenge the expert’s testimony, the company or lawyer would need to attach the testifying professional through his or her participation in the event and the facts and understanding of transactions related to the bankruptcy. With less of the court in use, the challenge remains more of a peaceful setting with the lawyer and client questioning the testimony, facts and knowledge of the case and all related materials.

The differences in the bankruptcy litigation affect the legal rules that preside over the expert witness and any testimony, report or opinion he or she provides for the case. Challenging the expert is possible, but this challenge may deal more with the details of the report. If the document does not possess all the required materials, the opposing legal counsel may have a greater chance of success in disqualifying the expert witness.

Disclosure of Information

Communications between the lawyer and expert usually remain a private matter. However, Rule 26 that governs over these circumstances may not apply if the court deems the information necessary. This could disclose the details of the contact between the expert and lawyer, and this could disqualify the expert from the case.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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