In today’s courtroom, only an opinion that the judge believes is reliable goes into evidence. The expert in any federal case must provide an opinion that is admissible under the Daubert-Joiner-Kumho gatekeeping test. State courts are adopting similar tests. In the post Daubert-Joiner-Kumho era, litigators have the critical task of presenting reliable expert testimony and precluding unreliable expert testimony of the other side. Attorneys now must expect their retained expert to face a Daubert-style test.
Therefore, in hiring an expert: the first question is: Can this expert pass the Daubert test?
If the expert fails the Daubert test, the consequences can be disastrous in that particular case. Not only are there consequences for the attorney and his/her client; there are consequences for the expert. Not only are there consequences in that particular case, there are consequences that arise even after that particular case ends. This article discusses the problems that will be faced by the attorney and expert, if the expert fails the Daubert test.
For the Attorney – The Consequences
If an attorney-retained expert cannot get his/her opinion into evidence, the attorney faces major consequences:
Loss of the case.
Loss of standing in the legal community, and clients’ disappointment.
Possible grievances and malpractice claims.
The obvious result when the opinion is not admitted is that the case may be lost. Normally, the reason why an expert opinion is sought is because it is necessary to prove the case. Generally, when the expert opinion goes out, there is not sufficient testimony to hold the verdict.
Indeed, in the federal courts, Weisgram v. Marley gives adverse Daubert rulings the potential for death-sentence finality. In Weisgram, the United States Supreme Court upheld the authority of a court of appeals to direct the entry of judgment for a defendant as a matter of law for a defendant which had lost at trial, when plaintiff’s expert testimony was excluded only on appeal. This is an important development, because until Weisgram, when appellate courts excluded expert testimony, the typical action was to reverse and remand. The Supreme Court said that, since Daubert, “parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet.” Continuing, the Supreme Court said something that state courts may echo: it “is implausible to suggest, post Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.” So, if the expert testimony goes out, the case may not be retried — someone can just lose without a second chance.
Loss of the case is usually a financial setback, if not a financial disaster, for both attorney and client. The client’s financial loss is obvious. In addition, when the client is disappointed, the relationship between attorney and client is soured. The attorney loses whatever chance he had to have good rapport with the client, and the client goes away talking ill of the legal systems in general, if not of the attorney in particular. The emotional drain is on both sides of the attorney – client relationship. Attorneys form emotional bonds with their client. No matter how hard the attorney tries to remain objective, a litigator is an advocate with a passion. That passion is not only to win but to win for a client.
For plaintiffs’ attorneys the financial loss is not simply failure to gain a fee. Plaintiffs’ attorneys have to invest large sums out of pocket to try a case that involves expert testimony. Add the investment in attorney time and support staff overhead, and the loss of a case is not a light item in the annual profit and loss statement.
The consequence of a loss of an expert testimony case is not limited to that one case. Insurers and self-insured corporations may say that they do not link the win-loss ratio of an attorney with the likelihood of future retainers, but the fact is they do. We all want to be on the winning side, and corporate defendants can be quick to say it was the attorney, not the corporation’s fault, that the defense lost the case. On the plaintiffs side, like it or not, winning a case is a prerequisite to increased esteem in the legal community. Trial attorneys today, in large measure, depend upon referrals and word of mouth to keep their shop operating. One loss that is reported widely, and that reflects upon the attorney’s choice of an expert, or the attorney’s handling of the expert, can cause a loss of referrals. Certainly, the competition today among trial attorneys for referrals is sufficient so that attorneys who win cases have an edge over attorneys who lose cases.
This leads us to the last of the general consequences which will be faced by the attorney when his/her expert cannot meet the Daubert test: the possibility of the client complaining to a grievance committee or starting a malpractice action. The validity of the malpractice action may depend upon the attorney’s preparation of the case. After a loss the attorney’s preparation of the case will be examined in detail.
Why did the expert fail the Daubert test? Was it because this particular expert has had a succession of court appearances in which the expert has never been able to get their testimony into evidence? If so, the attorney’s failure to inquire may be critical. The retaining attorney, like a cross-examining attorney, who has been in the business 20 years is used to asking the expert a couple of standard basic questions, to wit:
- Have you given depositions in court before?
- Have you testified in court before?
Today the examining attorney, whether being the retaining attorney or the cross-examining attorney, needs to add a third question to that standard list, to wit:
- Have you ever had your opinion excluded from evidence?
The questionable expert, who has had his opinion thrown out ever since the Daubert test has come into being, may be able to answer a “yes” and give very credible references in relation to the first two questions. The third question (which even today is not often asked) is the question which will disclose that the expert was the subject of a successful motion barring his testimony.
Is it professional negligence to fail to ask for the credentials of your own expert before hiring? Probably yes. Is it professional negligence to fail to ask, before hiring the expert, that specific question whether the expert has had his/her opinion excluded? It might be, depending on the circumstances. A check can be made by Internet sources such as MDEX Online’s Daubert Tracker which allows a search for reported cases in which a particular expert is mentioned. Certainly today, both plaintiffs’ attorneys belonging to ATLA, and also defense attorneys belonging to DRI, have databases available to check on the adverse expert (or their own). It can be expected that the adverse attorney has run such a check on your expert. A jury on a malpractice suit, might believe you should not have done less. It is easy to defend a legal malpractice suit on the claim that on the basis of professional judgment even though the proposed expert had been consistently thrown out of court before, you thought this time it would be different. It is not so easy to say that you never checked when a check would have found a consistent pattern of denial of the expert’s opinion into evidence.
Or, did the expert fail the Daubert test because the attorney presenting the expert never asked the questions that would lay the foundation for passing the Daubert challenges. As mentioned above, if an appellate court believes, on the record that exists, that the opinion was not admissible, the opinion may be thrown out without any retrial. There may be no “second chance” to go back and put in the foundation that existed. A wise attorney, therefore, will, on his own initiative, put into evidence those items which will allow the expert’s opinion to pass the gate, even if the adverse party has no cross examination on that point. Do not rely on the fact that the adverse attorney did not do any cross-examination. All that is necessary is that the adverse attorney object to your expert on Daubert grounds and that you have failed to affirmatively ask the right Daubert foundation questions of your expert.
Therefore, not only because of the possible loss of the case, but because of other reasons, the attorney needs to ensure that he/she has an expert that can pass the Daubert test, and also ensure that he/she has asked the questions to put the Daubert foundation into the record.
For the Expert – The Consequences
The expert, likewise, has several problems that arise if his/her opinion is kept out of evidence in a particular case. Those are:
Loss of further employment in that case.
Loss of self-confidence.
Loss of future employment.
Forever thereafter, cross-examination about the loss of that opinion.
In today’s legal world, the sequence of events for an expert with an opinion is:
Deposition of the expert.
Daubert-style motion regarding the expert’s opinion.
If the expert’s opinion passes the Daubert test, testimony in court.
The latter item, testimony in court, normally is the highest revenue-producing area for an expert. Therefore, the loss of further employment in the particular case can be a substantial loss on the time spent on the work-up of the case.
There is another aspect which is not normally discussed in the literature on expert testimony: the expert’s own loss of self-confidence when his opinion is kept out of evidence. There are some experts who have supreme egos and can lose again and again and still forge ahead as though nothing had happened, but most experts are persons not used to the rough and tumble of a trial. Many excellent experts have fragile feelings about court testimony. When their expert opinion is kept out, they retreat into either feeling that (a) the legal system is unjust and stupid, or (b) they themselves are not able to do legal work. The blow to self-confidence can show in later testimony. Juries (not to mention attorneys) are impressed by the outward signs of self-confidence. The outward signs of self-confidence have to come from within if they are to hold up in court. For this psychological reason, then, if for no other, an expert should strive mightily to build his opinion to pass the Daubert test.
It goes without saying that if an expert’s opinion is kept out of evidence, the expert will have less chance of being retained in the future. First of all, the attorney who retained him in this case is not so likely to retain him for a second case. “Fool me once – shame on you; fool me twice – shame on me,” is a proverb that attorneys take to heart. Not only will that particular attorney tend to not retain the expert again, but when called by a fellow attorney asking about the performance of the expert, the attorney is likely to blame the denial of the testimony on the expert, rather than on himself.
Once an expert has had his/her opinion excluded from evidence, the chances go up that it will be excluded another time. There are two reasons for this. First, the adverse attorney in the second case is given emotional support and a ready-made line of questioning that might be used successfully again. Until an expert is successfully attacked, only in the most obvious cases does the adverse attorney really believe that a highly credentialed expert can have an opinion that will be excluded. Once the expert has been successfully attacked, all attorneys think they can duplicate the feat. So, “once excluded, evermore attacked” is a maxim for experts to remember. Second, the judge is more ready to exclude an expert’s opinion if some other judge did it before.
Last, and perhaps most powerfully, once an opinion has been kept out on the Daubert basis, the expert will bear the cross of adverse examination on the witness stand about that point. Unfortunately, most attorneys tend to qualify their expert by, among other things, inquiring if the expert has ever testified in court before. This immediately opens up the cross examiner’s ability to ask if the expert has ever been barred from testimony in court before. Even without that door opened by the proponent, an energetic cross-examiner can devise a plausible, unobjectionable question about past opinion exclusions on the same general subject. Even if the court allows the expert’s testimony in, as passing the Daubert case, the jury which has heard that some other court thought the expert’s opinion was worthwhile will have a suspicion about the character of the expert.
There are consequences when an expert’s opinion does not pass the Daubert tests. The loss of the case is obvious. The other consequences compound the disaster. Today, all attorneys and experts must pay attention to the expert’s ability to form an opinion that will pass the Daubert test. Both attorney and expert must pay that attention before the expert is hired and before the expert gives the opinion. Later attention might be too late!