A Litigator's Guide to Expert Witnesses

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American Bar Association, 2006 - Law - 225 pages
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The admission of expert witness testimony remains one of the most contentious, critical, and interesting aspects of modern-day litigation process. This book examines the role of the expert witness, focusing on taking depositions, expert qualifications, admissibility of testimony, attorney-client privilege, Daubert, rules of discovery and evidence, selecting and presenting experts, and direct examination of experts.
 

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Contents

Overview
1
The Decision to Retain an Expert
2
Role of the Expert Witness
3
Consulting and Testifying Experts
6
Admissibility of Testimony
7
Disclosure of Witness Materials
10
Standard of Review
11
The Legal Framework
13
Expert Reports
91
Motions in Limine
102
Affidavit in Support of Expert
103
Jury Selection
104
Preservation of Error
105
Objecting to Experts
107
The Courts Role
108
Examining the Expert
109

Early Evidence Rules
14
Courts as Gatekeepers
18
Supreme Court Decisions
27
The Daubert Opinion
28
The Kumho Tire Opinion
31
The Joiner Opinion
35
Rules of Discovery
37
Discovery of Consulting Experts
38
Discovery of Testifying Experts
40
The Privilege Dilemma
43
Expert Report
44
Rules of Evidence
49
Admission of Expert Testimony Rule 702
51
Basis of Expert Testimony Rule 703
54
Ultimate Issues Rule 704
56
Underlying Facts and Data Rule 705
59
CourtAppointed Experts Rule 706
61
Learned Treatises Rule 80318
62
Reversible Error
63
Selecting Experts
65
Whether to Retain an Expert
66
Locating the Best Candidates
67
Presenting the Case
71
Early Communications with the Expert
72
Background Materials
74
Correspondence with the Expert
75
Disqualification of Experts
76
Precautionary Procedures
77
Side Switching
78
Expert Compensation
79
Chain of Command
81
Presenting Experts
83
Issue Identification
86
Providing Information to the Expert
87
Examinations Tests and Studies
88
Team Approach
89
Timing of the Objections
110
Disclosure of Underlying Facts
111
Moving to Exclude Your Opponents Witness
112
Factors of Reliability
113
Assisting the Trier of Fact
114
Depositions of Experts
115
Preparing Your Expert for Deposition
119
Direct Examination of Experts
127
Foundational Aspects of the Opinion
128
Role of the Examiner
129
Direct Examination of Your Expert
131
CrossExamination of Experts
145
Discovering the Experts Reliability
146
Foundational Evidence
147
Challenges Facing the CrossExaminer
148
Basis of the Opinion
149
Discrediting the Witness
150
Effective CrossExamination Style
151
Subjective Judgment
152
Constructive versus Destructive
153
Attacking the Experts Credentials
154
Information Not Admitted into Evidence
155
Statistics
156
Exposing Personal Bias or Interest
157
Exposing Materials Reviewed by the Expert
158
Courtroom Simulation
161
Responding to Questions About Bias
163
Responding to Questions About Fees
164
William Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 1993
165
Kumho Tire Company Ltd v Patrick Carmichael 526 US 137 1999
183
Federal Rules of Civil Procedure Rule 26 General Provisions Governing Discovery Duty of Disclosure
201
Federal Rules of Evidence
213
About the Author
217
Index
219
Copyright

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About the author (2006)

As a member of Fulbright & Jaworski LLP's litigation section since 1993, Cecil Kuhne has represented clients in federal and state court proceedings involving complex commercial disputes, business torts, and product liability. His experience extends to litigation concerning contractual interpretation, misappropriation of trade secrets, liability for pharmaceutical products and medical devices, professional malpractice, environmental degradation, and oil and gas development. He has long been an enthusiastic foodie, and he would gladly become a gourmand or a gastronomeif he could only spell it.

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