Defending Against a Daubert Challenge - Strategies for Expert Witnesses

Knowing the Daubert Factors

Before the Daubert challenge is even possible, it is essential to know what factors would cause the challenge and the factors surrounding the admissibility of evidence. The greater the knowledge, relevance of subject matter and reliability of testing methods, the greater chance the expert witness has in remaining as a designated expert witness on the case. Some of the important factors involve the theory or technique in testing. If the expert has a theory already tested, this may mean that professional peers have an involvement in papers or critiques of the methods. Peer review and publication is another important factor and the error rate is critical. It should remain similar throughout testing and have less than a five percent rate of error included.

The scientific community is usually part of the expert’s involvement

when he or she becomes an expert witness. This professional should have a standing in the community with membership or peers that are able to provide criticism. Additionally, the methods of testing or to base opinions on should have an acceptance in the wider scientific community with the field of study. If the expert is not a scientific expert, he or she should still have good standing and a positive reputation with his or her background and community.

The Strong Written Opposition

The Daubert challenge is possible at any time during the case or claim. However, they generally happen before the trial or claim for civil matters begin when the opposing legal team does not believe the expert witness has reliable testing methods or conclusions or is not a relevant expert in the subject matter. It is possible to create a strong written opposition to the challenge, but the expert must address each point specifically and give details about how he or she is relevant or the methods used to test evidence are reliable. Any other issues may require certain reference to testimony or the actual processes in use.

In many trial cases and certain civil matters, the expert’s report is what generates the challenge when the opposing legal team understands the materials. With all opinions that the expert has about the evidence and claim or case, the report provides the other legal professional with the necessary information to pose a challenge. If the methods appear unreliable or there exist inconsistencies with tests or possible testimony through unconfirmed facts, the Daubert challenge may remain valid. It is then that a strongly written report with specific points to succeed the challenge may save the expert from disqualification.

Preparations for the Objection

Some experts may need to prepare for a hearing with the opposing lawyer and judge with the intention of running into a Daubert challenge. This is often an effective strategy when the professional has multiple ways to explain the relevance and reliability connected to the case. The primary focus is not the findings of the evidence or connected and relevant materials but to demonstrate reliability with testing methods and relevance to the subject matter of the case. These two issues are critical in avoiding a disqualification based on a Daubert challenge. Highlighting the opinions through factual details and connection to results with reliable conclusions is necessary.

Knowing the Judge and Lawyer

Another effective strategy is knowing the history of the judge and any possible arguments the opposing legal counsel will have based on previous objections or motions. Challenges are best avoided through preparation and knowledge. The judge may become upset or angry if the Daubert motion occurs after the voir dire. Then, it is possible to either succeed the challenge or avoid it entirely by pushing the matter off or answering all necessary questions of the other lawyer.

Researching past rulings from the judge and understanding why the lawyer would issue the Daubert challenge, the expert witness may avoid or successfully pass this complication. Catering testimony to these situations is crucial based on the specific individual professionals. This may save time through litigation or in a criminal case when handled in the first stages of the case. Clearing up confusing may also increase the success of the expert.

Provided by HG.org

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.