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How To Effectively Attack & Defend Expert Testimony: The Conclusion – Blog 9 Of 9

How to Effectively Attack & Defend Expert Testimony: The Conclusion – Blog 9 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony

Effectively defending or attacking an expert witness begins with a working knowledge of the requirements for admitting expert testimony under § 90.702, Florida Statutes. The trial court acts as gatekeeper by determining whether expert testimony is both relevant and sufficiently reliable for admission. Under Daubert, courts will no longer admit pure opinion testimony. Rather, expert testimony must be grounded upon sufficient facts or data and be the product of reliable principles and methods that are reliably applied to the facts of the case. The same standards apply to hybrid expert witnesses who were participants in the project and have the credentials or experience to offer expert opinions at trial.
Effectively presenting expert testimony starts with expert selection. Attorneys must educate their experts on the legal requirements for admissible testimony, and experts must honestly communicate limits on their expertise to the attorneys and their clients.
Attorneys should use the case management rules to discuss and formalize Daubert deadlines and procedures. Attorneys should carefully consider whether filing a Daubert motion is the best litigation tactic before doing so. Attorneys may still voir dire expert witnesses at trial and in some cases that may be more effective. More than ever, attorneys must research the technical aspects of the issues and become familiar with the available methodologies in the construction context. Further investigation into the backgrounds of opposing experts is also paramount. Court opinions and Deposition Data Banks are of great assistance in obtaining information and preparing to challenge an expert at trial.
At trial, effective presentation of expert testimony requires the expert to provide a basic understanding of the construction issues first. Use of photographs, videos and diagrams helps the trier of fact visualize and comprehend critical issues. Effective cross-examination should focus on what the adverse expert is lacking in either qualifications and experience or the limits on investigation or testing the expert performed. The trial attorney need not unwisely attack the adverse expert on the expert’s own turf, rather the attorney need only sow doubt as to the reliability of the opinion. The art of effective expert presentation and cross-examination requires the ability to simplify for the trier of fact what are often complex issues.

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