10 Ways Expert Witnesses Can Protect Themselves From a Successful Daubert Challenge
Expert witnesses of all disciplines including accountants, engineers, appraisers, physicians, patent experts, damages experts, etc. are increasingly facing Daubert challenges. In a Daubert challenge opposing counsel will generally file a motion to disqualify the expert witness. This motion to disqualify will allege that the expert is unqualified or the methodology employed by the expert was not reliable.
In these Daubert situations, the expert witness very often has more at risk than the lawyer. If counsel loses the motion she may be permitted to replace the expert with another expert or perhaps be forced to settle the case. The expert who has been disqualified has his/her reputation permanently and adversely impacted. Future lawyers may be reluctant to hire an expert who has been disqualified. In addition opposing counsel in future cases may be permitted to cross-examine the expert about his disqualification – potentially impacting the expert’s credibility with the jury in that case.
In light of the above, experts need to protect themselves from successful Daubert attacks.
Here are 10 things expert witnesses can do to protect themselves from successful Daubert attacks.
1. Have a clause in your retention agreement stating that counsel immediately inform you about any Daubert motions filed against you. This is needed because many lawyers never inform the expert about these motions until after the fact stating they did not want to “bother” the expert.
2. Stay within you sandbox or areas of expertise. Experts who venture outside of their true areas of expertise are much more vulnerable to successful Daubert challenges.
3. Use an accepted and reliable methodology. Experts who stray from reliable methodologies are inviting a Daubert challenge.
4. When faced with a Daubert motion make sure retaining counsel is experienced and taking the motion seriously. Remember that your reputation at stake.
5. Insist on receiving a copy of all the Daubert pleadings including the motion itself.
6. Prepare a detailed affidavit for counsel stressing your experience, prior acceptance in other cases and the basis for your methodology. If need be get help from someone who has done this before so you do not have to reinvent the wheel and can avoid mistakes.
7. Review the document retaining counsel intends to file opposing the Daubert motion to make sure it is accurate and complete. If you find that the motion is not well drafted, work with counsel to make sure it is improved before it is filed.
8. Go over with retaining counsel how the motion will be handled procedurally by the Judge. Find out if the Judge will be holding a hearing on the motion, and if so make yourself available to attend the hearing in order to protect yourself.
9. Make sure that you are paid by retaining counsel for your time and effort helping to defend the motion. You should be paid your regular hourly rate. That you will be paid for your time spent defending against Daubert motions should be specified in your retention contract.
10. Get help. Many lawyers are not experienced in defending these motions. Some are pressed for time and may not be able to put their best effort in responding aggressively to these motion. When you lack or lose confidence in retaining counsel’s ability to defeat the motion to disqualify you, get assistance from an outside consultant with experience in these cases. Remember it is your reputation and possibly your future as an expert witness on the line.
About the Author
Attorney Steven Babitsky is an expert on expert witnessing and an experienced consultant on expert witness issues such as Daubert disqualifications. He is the president of SEAK, Inc., the expert witness training company (www.testifyingtraining.com and www.seakexperts.com).