Attorneys frequently challenge the qualifications and methodologies of opposing expert witnesses in civil litigation. Usually referred to as Daubert challenges, after a 1993 Supreme Court decision (later clarified and augmented by other rulings), these challenges can occur as formal motions or in-trial objections.
Data on formal challenges in North Carolina indicate that after a surge in the early 2010s and a decline thereafter, the number of Daubert rulings is increasing once again. The data miss many (if not most) of the informal challenges that occur during trial, and which account for nearly all the challenges I’ve faced in my career.
Others have written about the legal aspects of expert challenges, including the criteria specified in the Daubert and ensuing decisions. Here are a few points about Daubert challenges that I as an expert would like you, the attorney, to remember.
- Tell the expert immediately. If the challenge is framed as an objection at trial, the expert will generally know right away. But if it’s filed as a motion, the expert is rarely in court at the time. If you don’t alert the expert, the expert can’t help you defend the motion. I only recently learned that a formal Daubert motion was filed against me in a 2007 case. The motion was denied, but I didn’t know it’d been filed. Had it been a closer call, I wouldn’t have been able to provide assistance to my client.
- The expert has more at stake than you do. Disqualification has the potential to adversely affect the expert’s future business prospects. If I’m ever disqualified, other attorneys might be reluctant to hire me, and the disqualification would be fodder for questioning in future trials and depositions. In contrast, you might merely face tougher odds of winning your case. And maybe not even that. Sometimes, the attorney is allowed to replace a disqualified expert.
- A challenge highlights the fact that the expert’s and attorney’s objectives are mostly but not completely aligned. We both want to defeat a Daubert challenge. However, your primary objective is to win your case, and fair enough – that’s your job. My primary objective is to conduct a reasonable analysis and maintain my professional reputation.
- You should urge your experts to “stay in their lane.” Moving outside of one’s area of expertise is a sure-fire way to attract and possibly lose a Daubert challenge. Conversely, don’t be put off if an expert is zealous about guarding the boundaries of his or her expertise. I’ve told many attorneys that I cannot conduct certain types of analyses. I know where my lane is, and more importantly, where it isn’t.
- The challenged expert (or the retaining attorney) bears the burden of proof to establish the admissibility of the expert or the expert’s methodology. However, a 2020 study found that in a sample of recent Daubert rulings, only a third of them even mentioned the burden of proof. Did the other judges give the benefit of the doubt to the challenged expert? Perhaps judges are uncomfortable with their Daubert-assigned role as the gatekeeper of admissibility. So maybe you’ll get lucky. But of course, you shouldn’t count on that!
I recently saw an article for experts with the headline, “Daubert Challenge: End of Life or Another Day at the Office?” The answer to such questions is generally in the middle. But in my career, challenges are expected, at least in some cases. I get challenged nearly every time in commercial cases (such as the 2007 case noted above). There is still an assumption among some attorneys that only accountants with CPAs are qualified to opine about lost profits. When given the chance to respond, I’ve carefully explained the nature of the applied economics training I received and the extensive experience I have in reading and interpreting financial statements. So far, so good! I’ve never been disqualified. But it appears that when I’m working on a commercial lawsuit, a Daubert challenge is indeed just another day at the office.