Appendix 1: Bucklin’s Condensed Expert’s Opinion Admissibility Laundry Checklist©

(For exclusion of the opinion, the checklist is the negative of each point.)

We give this summary version away free here. This checklist is a shortened version of the full version (PDF format) of the published Expert Opinion Admissibility Checklist© available from LawyersTrialForms.com. If you want to purchase the latest full (17 plus pages) version of Expert Opinion Admissibility Checklist©, in a PDF format, which you can print right from your computer, go to the Lawyer Trial Forms website.

Permission is granted to use short portions of the following Bucklin’s Condensed Admissibility Laundry Checklist© in materials you show or give others, if you acknowledge that it came from Leonard Bucklin at www.Bucklin.org. Otherwise, all rights are reserved to this copyrighted material.

• The expert has qualifications in the specific field of expertise involved.

  Warning: How the expert, the attorney, and the court define the field is critical. For example, the opinions of a civil engineer who works for a truck company on the crush resistance of truck fenders but has never worked for a car manufacturer of the crush of a car roof, may be ruled out if the judge thinks the field is “car design”, but ruled in if the judge thinks the field is “crush mechanics.”

• There is a well accepted body of learning and experience in the expert’s field.
• The expert’s testimony is grounded in that body of learning and experience.
• The expert should explain how his conclusion is so grounded in that body of learning and experience.
• The principles of the specific field should be explained.
• The expert’s methods should be explained.

  While the term “method” may convey one idea when applied to science, it may convey another idea when applied to other types of specialized knowledge. E.g., the method of a legal ethics expert may be to apply extensive experience, various accepted standards or professional rules, and a body of learning to a set of facts as shown by documents and testimony to determine the standard of action for a lawyer in a specific situation.

  Be sure that the expert explains why this method has involves steps that an expert reasonably would take to take to solve the problem,

• The principle/theory/technique/method can be objectively tested, or has been tested.
• The principle/theory/technique/method has been subjected to peer review or publication.
• The principle/theory/technique/method has a low potential rate of error.
• The principle/theory/technique/method has been generally accepted by the relevant industry as being appropriate to be used in matters of this sort.
• The principle/theory/technique/method has been used outside this litigation in which the conclusion is being offered.
• In a field of expertise (usually scientific fields) where the following factors are applicable the expert should show:
  • that an appropriate specific method, theory or technique was used;
  • the method, theory or technique can be, or has been, tested;
  • the method, theory or technique has been subjected to peer review and publication;
  • the known or potential rate of error with respect to the technique, and the standards controlling the technique’s operations are reasonable;
• All expertise is not scientific in nature. It is important to note rule 702 expressly contemplates that an expert may be qualified on the basis of experience alone. the Daubert series of cases does not deny that. See, e.g., United States v. Jones, 107 F3d 1147 )6th Cir. 1997)(handwriting expert basing his testimony on experience and training); Kumho, at 1178 (stating that “no one denies than an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”). but if the expert is relying solely or primarily on experience, then the witness must explain:
  • how that experience leads to the conclusion he/she reached,
  • why that experience is a sufficient basis for the opinion, and
  • how that experience is reliably applied to the facts.
• The data, items, materials involved in the case have been inspected/ reviewed.
• Where on-site investigation or experience is appropriate the expert has interviewed the appropriate persons and inspected the appropriate site or product have been inspected or interviewed.
• The expert has read the appropriate articles or materials in the field,
• The studies in the subject field relied upon by the expert should be identified,
• Explanation should be made of why (the methodology, rates of error, and results of) these studies are scientifically reliable.

  Warning: if the expert relies on a published study, he/she must also testify why the study is reliable. It is not enough to show that the study was done, or that it was published; why is the study reliable?

• If the expert is relying on experience, the expert should explain exactly: what the expert’s experience is; and how that experience leads to the conclusion reached.
• The expert should explain that the rate of error in his method is low.
• The expert should explain that the rate of error in his conclusion is low.
• Have the expert show how he/she has applied his/her knowledge and experience in handling the data and making his/her analysis.

  For example, show why he/she looked in one index of articles only, and from that index studied only certain articles listed.

• If proximate cause is the subject of testimony, then other plausible causes of the injury/condition should be ruled out.
• Show there is a logical connection between the data and the expert’s conclusion (to wit: the data has been bridged to the conclusion by sound inductive or deductive reasoning).
• Show that the expert’s conclusion was reached outside the arena of litigation.

(1) For the 17 plus page report with the checklist in full form, click here to purchase Bucklin’s Admissibility Laundry Checklist© in PDF format to print from your computer.

(2) Heading for the video deposition of an expert witness? Maximum effectiveness for a witness videotaped deposition comes from special preparation. Click here for Witness Instructions for Videotaped Depositions, in PDF format to print from your computer.

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