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Hiring a Survey Expert Witness? Five Things You Need to Know.

Expert Witness: Harper Litigation Consulting and Research
Not all survey expert witnesses are equal. Below are five key questions to ask before signing the letter of agreement. A valid and reliable survey can make all the difference to your case.

1. Do you do all of your own work or do you outsource it?

Ask about who exactly completes all aspects of the work: Case Review, Survey Design, Methodology, Questionnaire Development, Coding and Programming, Beta Testing, Fielding, Managing, Analyzing, and Report Writing. Should a unique situation arise, Ms. Harper has a network of qualified professionals from which to draw.

Many others, however, outsource virtually the entire survey to a third-party survey company. While some may help determine the methodology, many of the 'big names' just sign the report and show up to depositions and trials. Sure, they will say it was 'under their direction.'

Not only does this outsourcing practice lessen the credibility of your expert witness, it may introduce third-party questions of quality. And, of course, the survey will cost more as both companies
now need to be paid.

2. What online survey platform do you use?

Be sure they use only the premier leading online survey platforms. They provide broad device capabilities, advanced programming, and sophisticated analytical tools.

3. What survey sample houses do you use to get survey participants?

Ensure that your expert witness knows where and how the sample company gets its panelists. How they incentivize them to participate. If their invited panelists respond quickly? Are their respondents who they say they are? Do their respondents have similar characteristics to the US general population? How often can their respondents participate in a survey?

4. Have you been court qualified to provide surveys for legal cases?

Simply having a strong research background and/or education doesn't make an individual qualified to conduct surveys relevant in legal cases. Courts require very specific methodologies and practices not normal in the business world.

5. Have you ever been Dauberted as a survey expert witness?

Federal court cases and more than half of the states use Daubert. It determines whether or not an expert’s testimony gets excluded.

The Daubert standard provides a rule of evidence regarding the admissibility of expert witnesses’ testimony in federal court. An Expert’s Testimony or expert’s report can be challenged and excluded if it does not meet the Daubert standard. The Federal Rules of Evidence 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

-the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

-the testimony is based on sufficient facts or data;

-the testimony is the product of reliable principles and methods; and

-the expert has reliably applied the principles and methods to the facts of the case.

ABOUT THE AUTHOR: Harper Litigation Consulting and Research
Retained by 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.

Copyright Harper Litigation Consulting and Research

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.For specific technical or legal advice on the information provided and related topics, please contact the author.

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