Establishing the admissibility of expert testimony under Rule 702 of the Federal Rules of Evidence can be a complex challenge both for the lawyers who seek to admit it and the expert witness asked to provide the testimony. The U.S. Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, set out guidelines for courts to use when deciding whether an expert’s testimony is admissible under Rule 702. The California Supreme Court later adopted the rules articulated in Daubert for state courts. Sargon Enters., Inc. v. University of S. Cal. (55 Cal.4th 747 (2012). In its simplest formulation, the Daubert rule requires expert testimony to be both relevant to the issue at hand and based on a reliable foundation.
Not surprisingly, unpacking these standards reveals a host of details that attorneys and witnesses must consider. The Supreme Court’s decision to make relevance and reliability a gating issue for admissibility was motivated in part by the need to prescreen expert testimony so that juries weren’t simply asked to treat doubts about testimony as a question of weight. Implicit in this rationale is the idea that unqualified jurors should not be asked to make highly technical judgments about important technical issues without the court’s help.
The requirement for a sound basis is a key question that often disqualifies expert testimony. Under Rule 702, an expert must have scientific, technical, or other specialized knowledge that will help the court or jury understand the evidence provided. Under Daubert, an expert’s knowledge can be shown by demonstrating that the expert has derived the testimony using objectively sound methods.
The soundness of the expert’s approach to a given question is measured using a procedure grounded in principles of the scientific method. The aim is to establish that the expert’s testimony is reliable enough to be put before the trier of fact. Under Daubert reliability is determined according to a range of criteria, including:
- whether the theory or technique used by the expert to reach the opinion is falsifiable, refutable, or testable;
- whether it has been subjected to peer review;
- the known or potential error rate of the expert’s analysis;
- the expert’s use and consistent application of standards and controls; and
- the degree to which the methods and results are generally accepted by peers.
Attorneys and experts should expect any analysis conducted by the witness in preparation for trial to come under close scrutiny. An expert witness who has experience with litigation-related analyses will understand the importance of preparing the experiment conclusions reached for thorough critique by competing experts at the admissibility stage.
For more than 40 years HSNO has offered clients rigorous, professional litigation support, forensic accounting, and insurance claims analysis. We work closely with client attorneys to ensure that our work meets or exceeds the standards established in Daubert. If you need an expert accounting witness, please contact us today to learn what we can do for you.
Chris Money has been a member of the firm’s management committee for over 20 years. Mr. Money is also the partner in charge of the firm’s Latin American operations. Mr. Money has over 25 years of forensic accounting and fraud investigation experience.