Choose an Expert who can provide an Admissible Opinion

Only an opinion that the judge believes is reliable goes into evidence now. The expert in any case should provide an opinion that is admissible under the Daubert-Joiner-Kumho gatekeeping tests now used in the federal courts and in most state courts. In the post Daubert-Joiner-Kumho era, presenting effective expert testimony and precluding unreliable expert testimony from passing though the gate are critical tasks for litigators and the courts. An expert is not doing his job as an expert unless his/her opinion is considered reliable by the judge and thus can be admitted into evidence.

Finding a “qualified expert” is no longer enough. Gone are the days when, after an expert is found to be qualified (routine under Rule 702’s standards), the testimony would invariably get to the jury. Now trial lawyers, must look beyond the expert’s credentials. Lawyers and insurers must look beyond credentials to the expert’s ability to communicate methodology.

Methodology is now paramount in choosing an expert who can get the trial lawyer through a Daubert style objection. Whether the expert testimony is based on scientific tests and methods, or is based on the expert’s testimony or other specialized knowledge, under Daubert-Joiner-Kumho the trial judge must determine if the analytical approach the expert took in reaching the opinions and conclusions is sufficiently reliable. If there appears to the trial judge to be “too great an analytical gap” between the underlying data and the expert’s conclusions the trial judge will reject the proposed testimony. So choose an expert who knows how to state his/her method properly and clearly.

Most experts who are experienced in the courtroom presentation of evidence understand the importance of the foundation for their opinion. Those who are not experienced, e.g., the average family physician, will not understand that importance and will often resist spending time in getting educated on that importance. The result of lack of actual experience in presenting opinions in the courtroom may well be that a perfectly good opinion does not get into evidence solely because the expert does not properly verbalize the foundation. The obvious example is a busy orthopedic surgeon who wants to just say the person has osteoporosis and get out of the courtroom [without taking the time to explain (1)the method used to determine diagnosis, (2) that his/her method is the commonly accepted method in orthopedics, and (3) why that method of diagnosis does actually give a proper diagnosis]. That will be the orthopedic surgeon who will be surprised when his/her opinion is excluded from evidence. The trial attorney now, more than ever, must look for an expert who is (1) willing to take the time to verbalize – in detail – the foundation and (2) experienced in verbalizing –in persuasive clarity — the foundation for the opinion.

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