News

Evaluating Expert Witnesses: 10 Lessons for Trial Lawyers

January 5, 2017

Expert witness, photo by iStockphoto

In its ruling on Motorola Inc. v Murray in October 2016, the D.C. Court of Appeals adopted Federal Rule of Evidence 702 and the Daubert standard for determining the admissibility of expert witnesses in the D.C. Superior Court. The decision overturned decades of case law and now applies to all experts in every type of trial.

To help practitioners navigate the new rule, the D.C. Bar Continuing Legal Education Program hosted “Evaluating Expert Witnesses: The New Daubert Standard in D.C. Superior Court” on Tuesday, January 10. The 3-hour program was led by a panel of seasoned practitioners, a medical scientist, and D.C. Superior Court Judge Frederick Weisberg.

Prior to the course, moderator Patrick Malone of Patrick Malone and Associates gave the D.C. Bar a sneak peek, offering his insider tips for trial lawyers.

Ten Lessons for Trial Lawyers

Doctrine 

1) “Reliability” is a malleable term.
2) Same intellectual rigor should be used both inside and outside the court.
3) There is no easy bright-line test for all experts. 

Protect Your Experts 

4) Articulate the methodology.
5) Do thorough literature searches.
6) Ask opposing experts: “Can reasonable persons differ?” 

Probe Soft Spots 

7) Watch for experts wandering from their core expertise.
8) Mind the gaps.
9) Become literate in statistics and probability, and don’t forget to examine those error rates. 

Tactics to Attack/Defend

10) Know when and how to launch a Daubert attack. 

In addition to expanding on his tips, Malone was joined by Judge Weisberg, who played a key role in changing the law of expert admissibility; Michael Ambrosino, Special Counsel for DNA and Forensics, U.S. Attorney’s Office for the District of Columbia; Dr. Bernard Goldstein, MD, Emeritus Professor and Emeritus Dean, Graduate School of Public Health, University of Pittsburgh; and Maneka Sinha, Public Defender Service for the District of Columbia.