When Daubert Challenges Arise, the Expert is Your Best Defense
As Daubert challenges against damages experts have become routine, many attorneys have found that the expert can be the best tool the attorney has to help with preparing not only the response but also a Daubert challenge of the opposing expert.
By Robert H. Alexander, CPA/ABV/CFF, ASA
For an expert’s report to be admissible, the assumptions included in the report must be reasonable and have a sound basis. The methodology must be accepted and reviewed. As part of this, the expert must consider alternative causes of the economic damage. To do this, the expert often must take into account information and facts that may be outside of their normal area of expertise. Often, opposing attorneys will attempt to make this exercise appear as if the expert is venturing out of his area of expertise and giving opinions that he is not qualified to give. When challenged, the expert can help the responding attorney fully understand why this work was done and that it is a requirement of Daubert. Together they can craft a response that addresses both the legal and methodological issues related to the challenge.
Another common challenge is to assert that the expert’s work and methodologies have not been “peer reviewed.” The expert can help show that it has. Treatises published by experienced authors address acceptable damage methodologies and what has been allowed in other cases throughout the country. Another more direct peer review can be accomplished by having an equally qualified expert, often within their firm, review the work.
An expert can be equally important in preparing for a Daubert challenge of the opposing expert’s work.
The ethical and technical standards that govern expert work vary depending on the type of engagement and the organizations to which they belong. The expert is the best person to know whether or not the opposing expert has followed professional standards of the appropriate organizations. This can be particularly applicable when business valuation issues are involved.
Cases have both good facts and bad facts. A qualified expert must deal with and address both types. Often the expert is the best-qualified person to know how to handle those facts that relate to their expert opinion and the opinions rendered by the opposing expert. Consequently, the expert can see Daubert issues in the opposing expert’s report that might otherwise be missed.
And just as Daubert challenges are nearly automatic, appeals of the verdict are too. While an expert will likely know if a Daubert challenge has been filed in an active pre-trial case, that is not true with issues arising in appellate work. If an appeal issue centers around the expert’s opinions, then it is incumbent upon the attorney to reach out to the expert for assistance. When the judge and jury have accepted an expert’s testimony and opinions, it is largely because the expert was actively engaged in the process. Through testimony, he explained his work, methodologies, and opinions. Consequently, when an expert’s opinion becomes an issue on appeal, it is imperative for the attorney to involve the expert to clarify issues that may be raised.
An experienced expert should be very familiar with the requirements of Daubert and should have designed his report to satisfy those requirements. Avoiding a successful Daubert challenge is critical to the expert. Their reputation is at risk if the challenge is successful. Consequently, it is vital that the expert plays an active role in any challenge to the admissibility of their report or testimony.
Published on LinkedIn July 22, 2016