A FEW POINTERS ON EXPERTS

February 27, 2012 § 3 Comments

In a few trials lately, I’ve been surprised at the relatively relaxed approach lawyers have taken to identifying the expert witness in discovery, responding to the standard expert witness interrogatories, and even qualifying the expert to testify at trial. If you get lazy with how you present your expert you are inviting error into the record.

Here are a few reminders:

  • If you are asked in discovery to identify your expert, UCCR 1.10 requires that you must do so not less than 60 days in advance of trial, or you will not be allowed to call the expert.
  • If you are asked in discovery to provide the information set out in MRCP 26(b)(4)(A)(i) as to the subject matter, ths substance of facts and opinions, and a summary of the grounds for opinions, you must provide a substantial enough answer to give the other side a reasonable idea of what the expert’s opinions will be and what it is that the expert uses as a basis for the opinion. If you do not timely provide that information, the testimony may be excluded, or you may be severely limited by a skimpy answer. This is important, and may be crucial to your case. If you don’t have a system in place to remind you to update and supplement your discovery well in advance of trial, you’d better come up with one for your survival’s sake.
  • At trial, you must qualify the witness. Here is the process, in a nutshell:
    1. Identify the witness.
    2. Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
    3. Tender the witness as an expert to the court, which will allow the other side to voir dire the witness on qualifications. Remember that you must tender the witness as an expert in a specific field. For example: “I tender the witness as an expert in the field of child psychology and behavioral disorders,” or ” … in the field of surveying,” or ” … in the field of counseling with an emphasis on identifying and treating victims of child abuse and domestic violence,” etc., etc., etc.
    4. Address any objections to qualifications.
    5. Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
    6. Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
    7. Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
    8. Develop the expert opinion.
  • You can find some more detailed information about the process at this earlier post.

It’s your case. Try it as you like, but remember that no matter how satisfactory the outcome at the trial level, it’s only as good in the long run as the record you made.

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