Some Things to Try
Some of these ideas are more brainstorms than suggestions, and no representation is made that they will work, or even that the author would consider trying them himself. In fact, many of these ideas are things that the author wishes somebody else would try first.
Tactical Notion #1: Put It in the Retainer
Some facts are basic and should be disclosed early in a relationship. Daubert is one of those, and it should be discussed explicitly from the time the expert is first retained. Consider giving the expert a package including Fed. R. Civ. P. 26(a)(2), Fed. R. Evid. 702 and 703, the Daubert and Kumho Tire decisions, and perhaps a few other judicial opinions involving witnesses in the expert's field. Also consider including a plain statement of the expert's Daubert responsibilities in the retainer agreement. Explain to the expert, in any event, that close collaboration will be required to clear the Daubert hurdles. Emphasize the importance of including a clear recital of the expert's reasoning in the report. Query: It is ethically impermissible to make an expert's compensation contingent on the outcome of a case. Is it ethically proper to condition compensation on the expert's survival of any Daubert motions? That's a closer call, and someone should elicit a bar opinion.
Tactical Notion #2: Put It in the Pretrial Scheduling Order
Consider getting early control of the Daubert process by including some simple provisions in the initial pretrial scheduling order. These could include:
If opposing counsel balk, this can be construed as a sign that such prophylactic measures are all the more necessary.
Tactical Notion #3: Reallocate Responsibility for Inferential Gaps
As Daubert jurisprudence evolves, it becomes clearer and clearer that the debate is frequently about "gaps" in the expert's chain of inference. The district court enjoys discretion to evaluate whether the experts themselves satisfactorily bridge those gaps, but trial courts have little or no discretion in determining whether a jury could legitimately bridge them. Consider exploiting this circumstance by breaking the expert's analysis into discrete and highly defensible mini-conclusions that support the expert's more controversial Ultimate Conclusion. The court may conclude that the mini-conclusions are themselves admissible but that Daubert does not permit the expert to take the the leap from the mini-conclusions to the Ultimate Conclusion. In that event, it may be arguable that the jury could permissibly take the last step for itself. (Look what happened when the trial court excluded this economist's opinion on the amount of hedonic damages but permitted his testimony on the concept of hedonic damages.) In some cases, one may even want to have the expert skip the Ultimate Conclusion altogether. Admittedly, certain magic testimonial language stating an Ultimate Conclusion (e.g., "to a reasonable medical certainty") may be a substantive legal requirement in some types of case. But not, by any means, in all. Cite the Advisory Committee Notes to Rule 702 ("an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts").
Tactical Notion #4: Prepare for the Deposition
After Daubert, expert depositions require intense preparation, and the deposing attorney must be totally immersed in the expert's report, the relevant literature, and the underlying data. Exclusive reliance should never be placed on some generic expert deposition checklist.
Tactical Notion #5: Remember the Report
Inexplicably, attorneys and experts who have devoted Herculean labors to perfecting the placement of every comma in the expert's report will often cut themselves utterly loose from the report's moorings when the expert is deposed. The expert must be made to understand that depositions are not seminars. There is no requirement for the expert to rephrase the required reading to the satisfaction of opposing counsel. There is, in fact, no requirement that deposing counsel even admit to understanding the report by the time the deposition concludes. This is not to condone evasive mumbo jumbo. But every reformulation of the expert's language poses some risk of inconsistency or misunderstanding, and as the reformulations mount, so do the risks. If deposing counsel's question is addressed in section 1.3 of the report, the witness is allowed to say that, and should.
Tactical Notion #6: Send a Rule 11 Letter
On any natural reading of its plain text, Fed. R. Civ. P. 11 applies to motions in limine. See also 28 U.S.C. § 1927 (sanctions of costs, expenses, and attorneys' fees against counsel who unreasonably or vexatiously multiply proceedings).
Tactical Notion #7: It's Not an Expert Opinion, It's an Experimental Test
The Eighth Circuit seems to believe that witnesses who conduct and then describe "experimental tests" are not testifying as experts under Rule 702 and that Daubert therefore does not apply to their testimony. This has the feel of a loophole, and its dimensions are uncertain, but maybe it would work with accident reconstruction, for instance, and maybe it would work outside the Eighth Circuit. It behooves anyone making the attempt to remember that it in many jurisdictions, it is unethical to compensate fact witnesses.
Tactical Notion #8: It's Not an Expert Opinion, It's a Rule 803(6) Business Record
Consider the recurring issue of the lab report. A sample of something is sent to a laboratory -- that is, to a place where chemists and their ilk congregate to analyze substances in their normal course of business. A chemist pokes and prods the substance, and records the results, let us suppose, on a form. Perhaps such forms are then routinely forwarded to a secretary, who enters the information into a computer database, from which it may later be retrieved on demand. It might be supposed, if a printout from this database were later to be offered at a trial for the truth of the chemist's analysis, that Daubert would require the laying of a suitable foundation -- viz., that the chemist was qualified to conduct the test, that a reliable testing methodology was used, and perhaps even that the methodology was correctly applied. Not so. Not, at least, in the Eighth Circuit, whose soft spot for "experimental tests" is noted above. In the Eighth Circuit, the lab result is apparently admissible as a business record under Fed. R. Evid. 803(6), at least when offered by a federal agency thought to qualify as reputable. See Shelton v. Consumer Prods. Safety Comm'n, 277 F.3d 998 (8th Cir.), cert. denied, 537 U.S. 1000 (2002). Whether private litigants could get away with such folderol is another matter. The word "folderol" is chosen advisedly. Rule 803(6), after all, merely provides that business records are not barred by the hearsay rule. It does not normally negate the independent requirement that the proffered documents satisfy other evidentiary requisites. The Eighth Circuit seems to have ignored this problem in Shelton. But perhaps the Eighth Circuit's holding is less an affront to Daubert than might at first appear, because Rule 803(6) does call for evidence within the rule's scope to be excluded if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." A lack of scientific reliability under Daubert may qualify as such a "lack of trustworthiness." At a minimum, however, Rule 803(6) operates to shift the parties' usual burden of persuasion on this point. Under Daubert, it would generally rest with the proponent. Under Rule 803(6), it rests with the objecting party.
Tactical Notion #9: It's Not an Expert Opinion, It's a Rule 1006 Summary
Under Fed. R. Evid. 1006, voluminous evidence that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. In at least one criminal proceeding, the Tenth Circuit has permitted government financial analysts to "summarize" the defendants' financial records without being qualified as experts. It seems not improbable that a certain quantum of expert spin was thereby smuggled in, and it is open to question whether this analysis would be followed in a civil trial where the financial numbers were the primary focus of dispute. But maybe it would, because Rule 1006 does provide some safeguards. The underlying material must be made available to the other parties for inspection and copying, and the trial judge "may" order that the underlying material be produced in court. In addition, under the express terms of Rule 1006, the underlying material must itself be "evidence" (i.e., the underlying material must be admissible). Financial records, of course, are very commonly business records and/or party admissions. Caveat: Once again, attention is owed to prohibitions against compensating fact witnesses.
Tactical Notion #10: It's Not an Expert Opinion, It's a Death Certificate
In some states, a death certificate may be offered as prima facie evidence of the cause of death. In a diversity action, do such state provisions supply the rule of decision, trumping any inconsistent requirements imposed under the Federal Rules of Evidence? Or must the opinion on the cause of death embodied in the death certificate pass muster under Daubert? The First Circuit has ruled that even assuming the applicability of the federal evidentiary rules, a trial court may not exclude the death certificate on the sole basis that the opinion expressed therein is unpersuasive or lacks credibility. In a footnote, the appellate panel dismissed Daubert as inapposite, although the panel did later hint that a challenge to the credentials of the person preparing the death certificate, or to "the sources of information utilized" in the death certificate's preparation, might be entertained under Fed. R. Evid. 803(8). See Blake v. Pellegrino, 329 F.3d 43 (1st Cir. 2003).
Tactical Notion #11: It's Not an Expert Opinion, It's Lay Opinion
Evidence law has long permitted lay opinion when it is rationally founded on the perceptions of the witness. Lest this encourage
proponents of opinion testimony to attempt end-runs around Daubert,
R. Evid. 701 was amended in 2000 to provide that lay opinion could not
permissibly include testimony "based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." It might appear
as though the rules thereby effected a neat separation between lay opinion and
expert opinion, rendering the categories mutually exclusive. But in
practice, this is not so clear. Among the permissible bases for expert
opinion under Rule 702 is the expert's "experience." But
experience might also be thought to represent the accumulated
"perceptions" of the witness, or insights and judgments rationally
drawn therefrom, under Rule 701. When the two rules collide in this
fashion, Rule 702's
requirements do not always prevail. In particular, there is support for
the proposition that business officers and employees may offer lay opinion on
lost profits, or the reasonableness of prices, based on their experience in the
relevant line of commerce. See Tampa
Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 1213
(11th Cir. 2003); but cf.
Inc. v. Hilton Hotels Corp., 351 F.3d 679 (5th Cir. 2003).
Tactical Notion #12: It's Not a Daubert Challenge, It's a Rule 403 Objection
Daubert supplies standards for admissibility under Fed. R. Evid. 702. But even evidence admissible under Rule 702 may be excluded under Fed. R. Evid. 403 if it would confuse the issues or mislead the jury, and in some circumstances the scope of the trial court's discretion under Rule 403 may be broader. Appellate courts have been sympathetic, for example, to district court court judges who disdain to conduct Daubert hearings on polygraph testimony and instead exclude it on Rule 403 grounds. This might also work, e.g., with experts on the reliability of eyewitness testimony. Caveat: To what extent may a court exclude testimony under Rule 403 and therefore discount it on a motion for summary judgment? This is a largely unexplored area, but if a reasonable jury could understand the evidence without being confused or misled, then excluding the evidence on summary judgment based on the bare possibility of jury confusion would seem problematic-- especially if the evidence satisfies the reliability demands imposed by Daubert.
Tactical Notion #13: Admit the Opinion, but Suppress the Word "Expert"
The very word "expert" is sometimes thought to be prejudicial. There is probably some foundation for that concern, although it may sometimes be difficult to know whether the label will help or hurt. In any event, when the principal objection to an expert's testimony is that his or her putative "expertise" will endow the expert's opinion with an aura of authority it may not deserve, one potential way to resolve the problem is to admit the testimony but eschew use of the word "expert" in the jury's presence. See United States v. Barrett, No. 04-1239 (3d Cir. Dec. 16, 2004) (unpublished); Gifford v. Vail Resorts, Inc., No. 01-1155 (10th Cir. June 14, 2002) (unpublished), cert. denied, 538 U.S. 980 (2003).
Tactical Notion #14: Trump the Expert's Expertise with the Agency's Expertise
In federal administrative proceedings, courts commonly take their cues from Daubert -- even though Rule 702 may not be literally applicable. The Seventh Circuit, in particular, has tended to see Daubert as supplying useful standards for judicial review in the administrative law context. But an additional factor can complicate the analysis in agency proceedings: viz., the agency itself is typically owed substantial deference by virtue of its own "expertise." Where an expert's testimony collides with the agency's habits of inference and analysis -- as reflected, e.g., in governing regulations -- there may often be arguments that the expert's analysis should give way. Conversely, where an agency's regulations sanction an expert's methodology, exclusion of the testimony in proceedings involving that agency may be especially suspect. Caveat: This does not imply that a federal agency's regulatory or evidentiary analysis can be imported uncritically into other kinds of proceeding for which the analysis was neither designed or intended. The Daubert opinion does not identify conformity with agency thinking as a factor in the general Daubert inquiry.
Tactical Notion #15: Use the Opposition's Expert Testimony
If a party's expert testimony is excluded under Daubert, evidence on some important point may sometimes be extracted from the opponent's expert testimony. Should a plaintiff, e.g., be permitted to rely on testimony from the defendant's expert to establish a prima facie case -- and if he does, must he first establish that the defense expert's testimony satisfies Daubert? The question is thorny, and the courts have sometimes ducked it. It is tempting to say that because the defense expert is an agent of the defendant, the defense expert's testimony may be regarded as a party admission. That's fine as far as it goes, but not all party admissions are admissible. The "party admission" idea may get you around the hearsay rule, but there remains the question whether the "party admission" satisfies other evidentiary requirements, and the rules do impose conditions on the use of opinion testimony, with the burden normally resting on the proponent to establish that those conditions are satisfied -- at least if objection is made. See Aliotta v. Nat'l R.R. Passenger Corp., 315 F.3d 756 (7th Cir. 2003). Is a defendant necessarily estopped from objecting to the testimony of the defendant's own expert? Maybe not technically. But the awkwardness of such an objection must be acknowledged.
Tactical Notion #16: Use Rule 50 to Secure an Appeal Before Trial Is Complete
By instinct, plaintiffs' lawyers dread motions under Fed. R. Civ. P. 50 for judgment as a matter of law. That dread is understandable. Rule 50 is generally employed by defendants to take cases from the jury and secure judgments in defendants' favor. In some situations, however, plaintiffs may be able to turn Rule 50 to procedural advantage, by exploiting it to secure early appellate review of adverse evidentiary decisions. The main thing to notice, for these purposes, is that Rule 50 does not require that presentation of the plaintiff's case in chief be completed prior to an award of judgment as a matter of law. Rather, the rule says, in plain terms, that a Rule 50 order may be entered as soon as the plaintiff "has been fully heard" on the pertinent factual issue. That condition is satisfied where it appears (perhaps by counsel's own admission) that the plaintiff has no additional evidence on the issue in question. Imagine, for example, that the trial court excludes the plaintiff's causation expert on the first day of trial. Imagine further that the plaintiff cannot establish causation without that expert and indeed has no further causation evidence to offer. The parties could now go through the motions of hearing the plaintiff's evidence on liability and damages, but this would be an arguably empty ritual, because the failure of proof on causation would make eventual judgment for defendants under Rule 50 a virtual certainty. If there is a good prospect that the exclusion of the causation witness is reversible, a plaintiff in this situation may prefer to halt trial pending appellate review of the exclusionary ruling. Among other things, this would spare the plaintiff any need to incur the burden and expense of presenting his or her evidence on liability and damages twice. Plaintiffs thus situated may therefore wish to suggest that the trial court immediately proceed to hear a Rule 50 motion from defendants, without waiting for plaintiff to rest. See Jodoin v. Toyota Motor Corp., 284 F.3d 272 (1st Cir. 2002).
Tactical Notion #17: Argue State Witness Competency Standards in Diversity Cases
Under Fed. R. Evid. 601, state law supplies the rule of decision on witness competency in diversity actions. Some state evidentiary provisions governing the qualification of expert witnesses are expressly framed as competency requirements, and others can potentially be characterized as such. See Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002).
Tactical Notion #18: Object and Object and Object
Under Fed. R. Civ. P. 16, the district courts have the undoubted authority to set deadlines for pretrial motions to strike. Whether failure to file a pretrial Daubert motion can operate to waive objection at trial is another question, on which no opinion is expressed here. On the one hand, given the disclosure requirements in Rule 26(a), there are plausible arguments in favor of such a sanction. Why interrupt trial to address a complex Daubert objection, if it might have been handled before the jury was ever impaneled? On the other hand, Fed. R. Evid. 103(a) can be read to suggest that objection at trial is enough, by itself, to preserve error (but see Feliciano-Hill v. Principi, No. 04-1072 (1st Cir. Feb. 22, 2006)). Of course, holding objections for trial, even if permissible, may sometimes promote error. Obviously, it would be counterproductive to raise a surprise objection at trial, if the judge felt pressured to issue a hurried ruling and therefore decided (say) to admit the testimony in reliance on the expert's qualifications and experience, giving short shrift to more difficult issues of methodological reliability. Or would it be? In the Ninth and Tenth Circuits, at least, the objecting party in such a situation may get two bites at the verdict apple. If the jury rules against the objector, and the verdict is reversed on appeal because the district judge failed altogether to discharge the gatekeeping function, the objector may be entitled to a whole new trial, even if the testimony in controversy is legitimately ruled reliable on remand. See Mukhtar v. California State University, 299 F.3d 1053 (9th Cir. 2002), amended on denial of rehearing en banc, 319 F.3d 1073 (9th Cir. 2003); Dodge v. Cotter Corp., 328 F.3d 1212 (10th Cir.), cert. denied, 540 U.S. 1003 (2003). True, the objecting parties in both Mukhtar and Dodge did file pretrial Daubert motions, but in neither case does the appellate outcome appear to have depended on that circumstance. Does this mean that litigants should game the system by lying in ambush with their Daubert objections? No one could suggest such a thing in good conscience. But fair's fair, and plaintiffs' counsel should take note. There is nothing in the rules that would limit such shenanigans to the defense bar. Meanwhile, litigants on both sides of the aisle can protect themselves, albeit at the expense of some awkwardness, by insisting that the trial court rule, fully and conscientiously, on any Daubert objections properly raised by the adversary.