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How Your Expert Witness Can Withstand a Daubert Challenge

When a Daubert challenge is presented in opposition to an expert witness, his or her entire testimony may be excluded from being giving in court. The time, energy and money spent in hiring the individual would be lost if the challenge succeeds, and without seeking additional support, the case may be weakened by this action.

However, it is possible to win against these challenges based on certain elements. When a Daubert challenge occurs, this means there is a direct test proposed for the methodology that an expert uses to formulate and conclude his or her report. With proper preparation, the right strategy employed and remaining calm, it is possible to succeed.

When a Daubert hearing occurs, it is to undermine the validity or reliability of an expert’s testimony. The challenge is due to the reasoning or methods used that are the basis to the opinion the professional comes to through his or her analysis of the matter. If the testimony is not deemed relevant and reliable, it is not admissible in the court room. It is important that the reasons provided by the lawyer and his or her expert witness in opposing the challenge are valid and in line with the 702 standard guidelines.
This may require further examination of processes, methods and procedures included by the expert.

Beating the Daubert Challenge

It is important to be proactive and oppose the challenge before it is raised. This prevents the other counsel from attempting to discredit the validity and reliability of the expert’s testimony. The fear that the professional’s conclusions will be excluded is enough to jump start these actions. IT is essential to keep the possibility of a Daubert challenge in mind when choosing the expert witness. This means there must be the best possible fit to necessary requirements as per the Daubert standards used in the court room. Asking the same questions that opposing lawyers may to disqualify or discredit the professional is one way to start this process before a challenge is raised.

Because the judge is granted more power in determining if evidence meets the requirements set forth by Rule 702, it is important that the expert witness uses methods that make sense, may be reproducible and have standard guidelines that back the reason for their use. There are four consideration points that must be passed. These are the testing of the processes, a peer review to determine validity, the rate of errors inherent in all methods and if the scientific community accepts the procedures with any reliance. It is crucial that any professional used for a case considers these possible points at all times when he or she may use his or her expert opinion on evidence.

Addressing the Challenge

In order to increase the odds of success with a Daubert challenge, it is necessary to answer every question presented to the expert by the challenger. These should be completely addressed and answered as best and extensively as possible. This may mean that documents, other studies, additional articles and similar items relevant and credible are included to support the claim of the professional. The challenge issued is usually against the methods and reasoning behind the conclusion. This would require a step by step analysis of all processes when a complete Daubert challenge has been permitted by the judge. However, most contention does not end with the full challenge.

The judge reviews the information and determines if it passes the challenge. It is more possible these complications may be raised when there are competing methods used and one has been chosen over another. This causes the expert to backup why he or she chose the procedure instead of another one. Communication is key in a successful outcome. This means that the lawyer and the expert witness should sit down and go over the processes, steps and facts of the case. Understanding these before the challenge starts is important. The explanations of the expert should be interesting, relatable to the average person and understandable for these individuals.

Successful Daubert Challenge

The expert witness must pass what the judge determines as reliable and relevant to succeed against a Daubert challenge. This means that the expert’s credentials, testing, methods and backing sources are all connected and may be shown as relevant to the testimony. To keep the professional as an expert, his end result of the report and processes should be clear and concise so that the judge is able to understand how they are connected and provide the basis for the opinion.

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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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