#juryconsulting

[zmflitigation]

Jury Consultant Perspective: Assessing Credibility of Potential Expert Witnesses

As a jury consultant, I am often asked to assess the credibility of potential expert witnesses. Recently, the subject has been raised of what to do about an expert who has been excluded from testifying in a prior case(s) due to Daubert v. Merrell Dow Pharmaceuticals. 

  First, what is the downside of hiring an expert witness who has been excluded from testifying in whole or in part for a previous case? Probably none. As long as the expert has a more extensive list of cases for which he or she has been qualified as an expert, there should be little to no concern in retaining such a person. If the opposing side manages to put in front of the jury the cases in which the expert was not allowed to testify on a particular subject, it certainly means that the expert, in response, gets to trot out all of the courts where such testimony has been qualified. In fact, if you have the expert with a much longer in than out list, you may want to keep still when the other side persists with its motion to allow the jury to hear the outcome of previous Daubert rulings. A jury is more likely to focus on the number of times the witness testified, than when they did not. In mock deliberations and post-trial interviews, a typical response when asked about similar situations is, “The times he didn’t get to testify was because of some technicality. He was clearly an expert. We could all see that.”

  Second, should previous rulings be raised in the cross-examination of opposing experts? We say no. Unless the witness has lied or was found not credible for some dubious reason, it is either a non-issue (see above) for jurors, or a cheap shot. In either situation, it is a waste of precious court time.

  From a lawyer’s perspective, one knows that Daubert challenges have become near universal in certain areas of the law, such as patent damages. Decisions by courts are inconsistent on any given issue, method or fact pattern. Most highly-experienced experts will find some aspect of their opinions limited over a period of time. Motions in limiting or restricting cross-examination of all experts on Daubert rulings in unrelated cases have generally been accepted by the courts.

  But if not…there is little to fear. If you want to hire experience, it is going to come with some bruises. A bad Daubert ruling should be the least of your concerns. What should you be stressing about? Come back another time to find out. 

Theresa Zagnoli Founding Partner and CEO Zagnoli McEvoy Foley

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