Presenting Expert Testimony

Notre Dame Law School
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1991
Presenting Expert Testimony

James H. Seckinger
Notre Dame Law School, [email protected]
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James H. Seckinger, Presenting Expert Testimony, 15 Am. J. Trial Advoc. 215 (1991-1992).
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Presenting Expert Testimony
James H. Seckingert
Introduction
Mindful that the readers of this Commentary include both experienced

advocates as well as lawyers embarking on new careers in the courtroom,
this author has divided the Commentary into two parts. The first part
considers the seven touchstones for a persuasive direct examination of
an expert witness. This discussion should be useful for the experienced
and inexperienced advocate alike. The second part of the paper is intended
as a primer on practical matters surrounding the selection, preparation,
and presentation of an expert as a witness at trial. Experienced advocates
may find in these pages confirmation of their practice concerning the
selection and use of experts. For those starting careers as advocates,
this section offers helpful suggestions on basic issues concerning the
selection and use of experts.
I. Seven Touchstones for a Persuasive

Direct Examination of an Expert Witness
Of all the advocacy skills and techniques used by an advocate during
trial, direct examination is the most underrated. A trial lawyer, basking
Copyright Q 1991 by James H. Seckinger and the National Institute for Trial Advocacy
(NITA). This Commentary, or any parts or portions thereof, may not be reproduced without
the express permission of James H. Seckinger and the National Institute of Trial Advocacy.
t B.S. (1964), St. John's University, Minnesota; M.S. (1968), Vanderbilt University; J.D.
(1968), University of Notre Dame. Professor Seckinger is Director of the National Institute
for Trial Advocacy and a Professor of Law at Notre Dame Law School. The author acknowledges
and expresses appreciation to Sheila R. Block, Barrister, Tory Tory DesLauriers & Binnington,
Toronto, Canada, and Steven Lubet, Professor of Law, Northwestern University School of Law,
Chicago, Illinois, for their insights and contributions to this Commentary. The Commentary
was significantly improved by their comments and suggestions.
This paper is dedicated to trial lawyers, who devote their professional lives to resolving
disputes peaceably through the common law adversary system. For trial lawyers, nothing is
more precious than our common law adversary system, which is the greatest vehicle ever developed
for resolving disputes, seeking justice and maintaining a peaceful and orderly society wherein
the rights of all are respected.
AMERICAN Jou.NAL Op TRiAL ADVOCACY [Vol. 15:215
in the glory of a recent victory, almost never regales the audience at

a bar association meeting, the law firm, or the local watering hole with
the exploits and drama of the direct examination during the trial. Many
trial lawyers and teachers of advocacy view direct examination as the
least glamorous part of the trial, and it is too often ignored in its
preparation and execution. Yet the direct examination of an expert witness
(or indeed any witness giving complex testimony) is often the most
important part of the trial. Cases are won on the facts as presented on
direct examination, not on the histrionics of the lawyer, no matter how
brilliant.
During cross-examination the trial lawyer is the star. Most trial lawyers
view cross-examination as glamorous, and all lawyers aspire to be great
cross-examiners. Cases, however, are rarely won on cross-examination.
The cross-examination can weaken an opponent's case, gain agreement
on facts that help the case, or let a little wind out of the expert's sail,
but seldom does the fact-finder's decision rest on the cross-examination.
The corollary, however, is that an ineffective cross-examination that
repeats and enhances the direct examination can strengthen the opponent's
case-in-chief and thereby lay the foundation for losing the case.
In summary, a well prepared and competent direct examination,
particularly of an expert witness, can win a case by giving the fact-finder
a basis for the decision. Great cross-examinations do happen, but rarely
do they win the case alone. Cross-examination is usually most effective
when poking holes in the opponent's case-in-chief or gaining agreement
on issues that help the case.
A. An Organizational Structure
for Direct Examination of an Expert Witness
One of the most effective tools for preparing a competent direct
examination is an organizational structure for the examination. This
is especially true when the subject of the expert's direct testimony is
his expertise, which is by definition, beyond the understanding of lay-
persons. An organizational structure assists the lawyer and the witness
in presenting persuasive and effective expert testimony.
The following seven touchstones provide a suggested organizational
structure for the direct examination of an expert witness:
19911 EXPERT TESTIMONY
1. Introduction-Identification and Relationship to the Case;

2. Qualifications;
3. Tender Witness as an Expert;
4. Assignment and Overview of Basis for Opinion;
5. Opinion;
6. Explanation of Opinion-Teaching;
7. Conclusion-End Strong.
B. Touchstone #1: Introduction-

Identification and Relationship to the Case
The introduction should clearly identify the witness. The witness's

relationship to the case should be explained in the introduction. Thus,
the introduction should set forth: the witness's name and profession,
the witness's reason for being called to testify, and the subject matter
of the witness's testimony. Furthermore, an introduction should also
include a succinct statement of the expert's opinion which (1) informs
the fact-finder why the witness is testifying and his relationship to the
case and (2) encourages the fact-finder to listen more carefully to the
witness's qualifications and investigation.
The following is a sample of questions which may be asked to establish
the witness's relationship to the case.
1. What is your name?

2. What is your occupation or profession?
3. What is your business address?
4. What is your area of expertise or specialty?
5. Have you been asked to ?1
6. Have you prepared an opinion on ?_
1. Insert a summary statement describing the investigation or examination that the expert
was retained to perform. For example, investigate the costs incurred by Pierce Electric due
to the overrun of the construction contract, or analyze the design of the hydraulic system on
the DC-10, or diagnose the injuries to plaintiff caused by the toxin xyzlet.
2. Insert a summary statement of the expert's opinion (for example, the total costs incurred
by Pierce Electric due to the delays in the construction project caused by the defendant, the
physical injuries caused to plaintiff by the toxins xyzlet, or whether the design of the hydraulic
system in the DC-1O was defective).
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
7. Before we get to your opinion in this case, what are your

qualifications and expertise to give such an opinion? (Then go
directly to the witness's qualifications.)
The traditional practice in the examination of expert witnesses is to

elicit the name, occupation and profession, and the business address
and then to proceed directly to the witness's qualifications. Including
questions 5, 6, and 7 above provides a contextual framework for the
witness's testimony at the very beginning of the examination, which
enhances the fact-finder's interest in the forthcoming testimony on the
witness's qualifications and the basis for his opinion. Without questions
5, 6, and 7, the witness may testify for a substantial period of time,
presenting qualifications and the basis for the opinion, before the fact-
finder knows why the witness is testifying or how the witness is important
to the case.
C. Touchstone #2: Qualifications
Eliciting the qualifications of the expert witness lays the proper

foundation for the witness's expertise and establishes the witness's
credibility with the fact-finder. In most cases the credibility factor is
the most important aspect of the qualifications process.
An outline for eliciting the expert's qualifications

can be as follows:
1. Topic Areas for Qualifications
(a) Education;
(b) Special Training;
(c) Experience;
(d) License/Certification;
(e) Publications;
(f) Teaching Experience;
(g) Experience as an Expert Witness/Prior In-Court Testimony.
1991] EXPERT TEslMONy
2. Tie the Expert's Qualifications Into the Case
For each topic listed above, the examining attorney should elicit as
much information as possible on qualifications that are relevant to the
issues in the case.
3. Priority of Persuasiveness of the Qualifications
Many lawyers focus a great deal of attention on the witness's

educational and academic credentials. While such credentials are
important, the primary focus should be on the witness's practical training
and experience. For example, would the fact-finder prefer to have a
major surgical procedure performed on him by a recently graduated
medical student with excellent educational and academic credentials
or by a surgeon with extensive practical training and experience?
4. Explanation of Expertise or Specialty
Medical and scientific experts typically have specialties and even sub-
specialties, and their particular area of expertise should be explained
to the fact-finder. Indeed, all expert witnesses should spend some time
explaining their area of expertise and how it relates to the case in
question.
5. Stipulating to the Expert's Qualifications
In some instances, particularly with a very well qualified expert witness,

opposing counsel will attempt to cut off any testimony regarding the
witness's qualifications by offering to stipulate to the witness's
qualifications and expertise. The proponent of an expert witness should
almost never accept such a stipulation. Counsel for the expert witness
wants the fact-finder to hear and be persuaded by the expert's
qualifications. Furthermore, the expert's credibility is at issue, and the
fact-finder should have the opportunity to hear the expert's qualifications,
as well as any other evidence bearing on credibility.
If, in the spirit of judicial economy, the court presses examining counsel
to accept opposing counsel's stipulation to the witness's qualifications,
AMECAN JOURNAL OF TRIL. ADVOCACY [Vol. 15:215
then examining counsel should request a stipulation that includes not

only qualifications but also credibility. The underlying issue is really
the credibility of the expert witness and his opinions. Thus, if the parties
are going to stipulate to the expert witness's qualifications, then examining
counsel should request that the stipulation include (1) that the witness
is qualified as an expert, (2) that the credibility of the expert witness
is undisputed, and (3) that the expert's opinions must be accepted by
the fact-finder. Such an inclusive statement of all the factors involved
in a stipulation on the expert witness's qualifications usually forces the
opposing counsel to back off on the request for a stipulation and also
forces the court to consider all the ramifications of such a stipulation.
If the court continues to insist that examining counsel accept opposing
counsel's stipulation on the qualifications of the expert witness, then
discretion and respect for the court must prevail. Accepting opposing
counsel's stipulation to the qualifications can still be advantageous because
it allows counsel to note in final argument that opposing counsel has
accepted and stipulated to the qualifications and expertise of the expert
witness. The ability to argue the stipulation on final argument is the
reason trial counsel sometimes accept the stipulation even without being
pressed by the court to do so.
D. Touchstone #3:
Tender Witness as an Expert in a Particular Field
The lawyer has the opportunity to tender the witness to the court as
an expert within a particular field of expertise. After eliciting the witness's
qualifications, the lawyer tenders the witness as an expert by making
the following statement to the court: "If the court please, I tender John
Doe as an expert in _ ' The court will then turn to opposing
_
counsel to inquire whether counsel has any objections to the witness

testifying as an expert.
Opposing counsel then has the choice of (1) objecting and stating
the grounds, (2) conducting a voir dire of the witness on the subject
of his qualifications before deciding whether to object, or (3) stating
3. Insert area of expertise, such as damage evaluation, metallurgical engineering, toxicology,

or internal medicine with a sub-specialty in endocrinology.
1991] EXPERT TESTwmONY
that there is no objection to the witness's qualifications. If opposing

counsel decides to conduct a voir dire on the expert's qualifications
at this point in the examination, most courts will preclude counsel from
later inquiring into the same areas during the cross-examination of the
expert witness. Thus, if opposing counsel wants to challenge the witness's
qualifications, he must decide whether to do so on a voir dire during
the direct examination or during the cross-examination. Courts generally
do not permit opposing counsel to cross-examine the expert on his
qualifications twice; opposing counsel only gets one bite at the apple.
If opposing counsel has no objection to the witness's qualifications or
if the court overrules the objection, the court will accept the witness
as an expert in the particular field of expertise.
There are distinct advantages to tendering the witness at this point
in the direct examination. First, the witness is formally recognized as
an expert before the basis for the opinion and the opinion itself are
presented to the fact-finder. Second, the issue of whether a witness is
qualified as an expert witness is resolved early in the examination rather
than later when examining counsel actually elicits the expert's opinion.
This tendering procedure thereby prevents any disruption caused by
objections and voir dire at the opinion stage of the examination.
E. Touchstone #4:
Assignment and Overview of Basis for Opinion
After the witness has been qualified as an expert, tendered and received
by the court, the direct examination should focus on the expert's
knowledge of the case. This part of the examination can be broken down
into two major categories: (1) the expert's assignment and (2) the expert's
basis for reaching his opinion.
1. The Expert's Assignment
The first step is to elicit the expert witness's reasons for appearing
in court and to handle the issue of compensation. A sample series of
questions are as follows:
• 222 AMERICAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
(a) Have you been retained to examine/investigate/evaluate the

' in this case?
(b) Are you being compensated for your time?
(c) Is that compensation arrangement the usual and regular fee for
these types of matters? Or, alternatively, is that compensation
arrangement the usual and regular fee in your field of expertise?
(d) What was your assignment in this case?
2. The Overview of the Basis for the Expert's Opinion
The Federal Rules of Evidence permit an expert to give an opinion

before providing the underlying basis for it-s Thus, the organization
of the direct examination is left to the discretion of the trial lawyer.
In many cases, stating the expert's opinion before discussing the
underlying data provides a useful frame of reference for the fact-finder.
This is especially true when a financial consultant/accountant testifies
as an expert because the financial data will not mean much without
a preliminary statement of the conclusion which the financial data is
to support. In other cases, however, it may be more appropriate to provide
an overview of the basis for the opinion before eliciting the opinion.
This procedure provides the fact-finder with a frame of reference for
the work done by the expert before actually hearing the expert's final
opinion. This approach makes the opinion more credible. Thus, rather
than mandating trial strategies by a rigid rule, Rule 705 leaves such
critical decisions to the trial lawyer, the one ultimately
6
charged with
presenting the most persuasive case for the expert
Using an Overview Approach to present the basis for the expert's
opinion allows examining counsel to present the expert's testimony
effectively and persuasively under either organizational structure (basis
for the opinion being given before or after the opinion). Examining
counsel can use the Overview Approach in all direct examinations of
4. Insert a summary of the expert's assignment.

5. Rule 705 provides: "Disclosure Of Facts Or Data Underlying Expert Opinion-The
expert may testify in terms of opinion or inference and give reasons therefor without prior
disclosure of the underlying facts or data, unless the court requires otherwise. The expert may
in any event be required to disclose the underlying facts or data on cross-examination."
6. See FED. R. EVID. 705.
1991] EXPERT TESTIMONY
expert witnesses and thereby forego the need for two organizational
structures--one structure when the basis for the opinion is required before
the opinion and a different structure when the basis is permitted after
the opinion.
The objective of the Overview Approach is to set forth the underlying
basis for the expert's opinion only to the extent necessary: (1) to introduce
the fact-finder to what the expert did, i.e. the methodology he used and
the data he analyzed, and (2) to lay the foundation for making the expert's
opinion credible to the fact-finder. In this portion of the direct
examination, the Overview Approach focuses solely on the methodology
used and the data analyzed by the expert in reaching his opinion. It
is important that the examining lawyer not let the fact-finder's attention
wander or get lost in a maze of data and information before the expert's
opinion is elicited. The fact-finder needs the opinion as a framework
for the underlying information. Therefore, reserve the explanation and
explication of the methodology and data used by the expert until the
teaching portion of the direct examination.
The following are examples of questions giving an overview of the
basis for the expert's opinion:
(a) You have told us that your assignment in this case was to
.' How did you carry out that assignment?
or-
What investigation or research did you conduct for that
assignment?
(b) What methodology did you use for your investigation or research?
(c) Is that methodology customarily used by experts in your field?8
(d) Briefly explain the methodology you used and why it is applicable
to this case.
(e) What data did you analyze?
(f) Is that type of data customarily relied on by experts in your
field? 9
(g) Was the data analyzed sufficient for the methodology used on
this project?
7. Insert a summary of the expert's assignment.

AMERICAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
Note how simple, clear, and straightforward the above sample topics
for questions are for both the expert's assignment and the overview
of the basis for the opinions. Keep it that Way in this portion of the
direct examination before the opinion is elicited. Although the
methodology chosen by the expert goes to the expert's core thesis in
the case, which is very important for the validity of the expert's opinion,
the detail should be left for later. In the overview portion of the direct
examination and explication of the methodology for later in the teaching
section of the examination. Likewise for data collection, which also
requires data explanation, save the explanation for the teaching section
of the examination.
3. Assumptions
The assumptions made by the expert in the investigation or research

process leading up to the expert's opinion are critical to the validity
of the opinion and thus are obvious targets for cross-examination;
therefore, they must be thoroughly brought out and explained during
the direct examination. This author recommends, however, that the
assumptions made by the expert should not be discussed in the Overview
section of the direct examination, but should be fully explained in the
teaching portion of the examination."0
In the Overview section of the direct examination, before the opinion
is elicited, the questions should be simple, clear, and straightforward.
It is very important for the validity of the expert's opinion" that the
methodology chosen by the expert relate to the expert's core thesis in
the case. Examining counsel should leave the details, however, for later.
The Overview portion of the direct examination should bring out the
methodology adopted, but save the explanation of it for later in the
teaching portion of the examination. 2
10. For a discussion of the teaching or explanatory part of the direct examination, see
infra Section H.
11. For a discussion of the elements of a valid expert opinion, see infra Part II, Section
C(3).
12. See section H for a discussion of the teaching or explanatory portion of the direct
examination. Likewise for Data Collection, which also requires Data Explanation, save the
explanation for the teaching section of the examination.
1991] EXPERT TEsniMONY
4. Evidentiary Principles Relating to the Basis for an

Expert's Opinion
The examining lawyer must determine what data the expert can rely
on to reach an admissible opinion. Thus, the admissibility of the expert's
ultimate opinion must be analyzed carefully regardless of where in the
examination the underlying data for the opinion is discussed. If the expert
cannot use the data to formulate an admissible opinion, then it may
not be elicited in any portion of the examination.
In order to determine the admissibility of the underlying data and
the expert's opinion, the examining lawyer must have an excellent
working knowledge of the rules of evidence, specifically the rules
governing expert witnesses. The permissible data that may be used by
an expert in reaching an admissible opinion can be divided into two
major categories: (1) what the expert did personally and (2) what the
expert relied upon.
What the expert did personally is admissible data under the rules of
evidence in even the most-restrictive common law jurisdiction because
the expert has personal knowledge and because the testimony presents
no hearsay problems. Even then, however, the underlying data should
be carefully analyzed to determine if there are implicit hearsay or double
hearsay problems. For example, the expert performed the test, but in
doing so he relied on tests performed by other scientists and on a journal
article on the procedures for conducting such tests. In a restrictive
common law jurisdiction, the examining attorney would need to find
a hearsay exception for the admissibility of that data. In a more liberal
jurisdiction the data would be admissible if it was of the type customarily
relied upon by experts in that field.'
The second major category of data used by experts in reaching an
opinion is information provided by others, upon which the expert relied.
13. See FED. R. EviD. 703. Rule 703 provides:
Bases of Opinion Testimony by Experts-The facts or data in the particularcase upon

which an expert bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.
FED. R. EVID. 703.

AMmiCAN JouitrAL oF TRIAL ADvocAcy[ [Vol. 15:215
This type of data is information received by the expert from others either
orally or in writing. As a result, by definition, such information presents
classic hearsay problems under the common law rules of evidence. To
avoid such hearsay problems under the common law, the other individuals
that supplied the information had to be called as witnesses or a hearsay
exception had to be found. To alleviate undue expense, both in terms
of cost and time, the courts often strained the limits of the hearsay
exception to accommodate testimony by experts in a modem technological
society.
To accommodate the hearsay rule for information that the expert relied
upon, but received from others, the other individuals had to be called
as witnesses. The testifying expert had to sit through the trial to listen
to the "other evidence" or receive the "other evidence" in the form of
a hypothetical question. This procedure is not only cumbersome, it is
also a fiction because it assumes that the expert listens to the "other
evidence" at trial and then formulates an opinion which he presents
to the fact-finder. In reality, the expert has done all his work before
trial, and sitting listening to the "other evidence" is merely a fiction
to accommodate the hearsay rule.
The hypothetical question can also be extremely cumbersome. Strictly
enforced, the hypothetical question must include all of the relevant facts
relied upon by the expert in reaching his opinion, andit may not assume
facts that have not already been received in evidence. Under the pre-
federal rules, there were numerous instances where the stating of a
hypothetical question and the re-stating after objection took days.
Furthermore, there were countless appeals on the sufficiency of the
hypothetical question. A practice then developed of requiring the
hypothetical question to be written out in advance and approved by the
court at a pre-trial conference. However, even that procedure did not
solve all the difficulties. Neither judges nor trial lawyers have lamented
the demise of the hypothetical question under the Federal Rules of
Evidence. With respect to the testimony of expert witnesses, it has been
acclaimed as one of the great steps forward in modem evidence law.
Rule 703 of the Federal Rules of Evidence14 confronted the problems
associated with the application of the hearsay rule to expert testimony
14. FED. R. EvID. 703.

in a modem technological society. Rule 703 basically abolished the

hearsay rule and all other evidence rules denying admissibility when
the data is of the kind customarily relied upon by experts in that particular
field. The drafters of the Federal Rules of Evidence decided that
underlying data generally relied on by experts in a particular field should
be sufficient for the courts.Us For example, when making a diagnosis
or prescribing treatment, a medical doctor in the course of making life
and death decisions relies upon medical tests performed by others. Thus,
the information garnered from such tests should be a sufficient basis
for a medical expert's opinion in court. Moreover, the drafters of the
Federal Rules of Evidence recognized the important role that cross-
examination plays in attacking the validity of the underlying data.16
Rule 703 entitled "Bases of Opinion Testimony by Experts" provides:
1. The facts or data in the particular case upon which an expert

bases an opinion or inference may be those:
(a) perceived by the expert before trial;

(b) perceived by the expert at trial;
(c) made known to the expert at trial; or
(d) made known to the expert before trial.
2. If the facts or data upon which an expert bases an opinion are

of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.1"
Under the Federal Rules of Evidence, data that an expert may use
in reaching an opinion includes any and all data (1) that the expert
personally collected or (2) that the expert relied upon which was received
from others, but only if it is the type of data customarily relied upon
by experts in a particular field of expertise.18 Hypothetical questions
15. See FED. R. EvID. 703 advisory committee's note.

16. Id.
17. FED. R. EviD. 703.
18. Id.
are no longer required, and the fiction of having the expert sit through
the entire trial and then use the facts so perceived as a basis for his
opinion is alleviated. Under the Federal Rules of Evidence, judicial
acceptance of expert testimony is in accord with the realities of modem
society."
F. Touchstone #5: Opinion
In the organizational structure of the direct examination, it is now

appropriate for the expert to testify in the form of an opinion, which
is what he has been retained to do. Because no other witnesses are
permitted to testify in the language of opinions, this testimony is critical
in the trial. Organizationally, examining counsel should set it off to show
its uniqueness, and the language used by the examining lawyer should
demonstrate its special nature.
1. Multiple Opinions
In many cases, the expert will testify to more than one opinion. The
examining attorney should separate each opinion and elicit them seriatim.
For example, when a medical expert witness testifies about an injury
to a person, four opinion questions are typically asked: (1) diagnosis,
(2) condition, (3) causation, and (4) prognosis.
2. Two Questions for Each Opinion
Traditionally, two questions are asked for each opinion:
(a) Do you have an opinion as to ?20

(b) What is that opinion?
This procedure has been developed to allow opposing counsel an

opportunity to object to the opinion question and let the court to rule
on the objection before the opinion evidence is presented to the fact-
19. See FED. R. EvID. 702 advisory committee note.

20. Insert a summary of the expert's opinion.
1991] EXPERT TETimoy
finder. The two-question format also serves to emphasize the uniqueness

of the opinion portion of the trial, which is one of the goals for the
examining lawyer.
3. Reasonable Degree of Certainty
Traditionally, to be admissible in court, an expert's opinion must be

one that the expert holds to a reasonable degree of certainty within the
expert's profession. The common law rationale for the "reasonable
certainty" requirement was that it (1) prevented speculation by the expert
and (2) ensured that the expert's opinion was one that was generally
accepted within that area of expertise.2
Preventing speculation by the expert is necessary, but the court can
readily handle the problem by applying a relevance test to the expert's
opinion. Thus, the court need not rely on the phrase "reasonable degree
of certainty within the expert's profession," which is routinely stated
as part of the standard opinion question.
Requiring that the expert's opinion be one that is generally accepted
within a particular area of expertise is commonly referred to as the Frye
standard. This standard originates from the language in Frye v. United
States.22 In Frye the court held that the test for the admissibility of
an expert's opinion is whether the process, system, or theory upon which
the expert bases his opinion is "sufficiently established to have gained
general acceptance in the particular field in which it belongs." ' Thus,
the Frye standard has been used to preclude polygraph evidence and
hypnotically refreshed memory.
Rule 702 of the Federal Rules of Evidence, however, does not refer
to a "general acceptance" standard, nor does it refer to a "reasonable
degree of certainty" standard. Rule 702 requires only that the expert
testimony "assist the trier of fact." Some commentators and courts
persuasively contend that the silence of Rule 702 on the matter repeals
the Frye standard and that the present test is based on relevance.2
Preventing speculation by applying a relevance test and the possible
21. See Tomello v. Deligiannis Bros., 180 F.2d 553 (7th Cir. 1950; Lieberthal v. Glen
Falls Indem. Co., 174 F.2d 638 (7th Cir. 1949).
22. 293 F. 1013, 1014 (D.C. Cir. 1923).
23. Frye, 293 F. at 1014.
24. See, e.g., State v. Catanese, 362 So. 2d 975 (La. 1979).
AmEtxcAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
demise of the Frye standard under the Federal Rules of Evidence may
eliminate the need for inclusion of the phrase "to a reasonable degree
of certainty within the expert's profession."
In addition to looking at the evidentiary requirements, the examining
lawyer should consider trial tactics and persuasion in deciding whether
to include the phrase "to a reasonable degree of certainty within the
expert's profession" within the opinion question. This language signifies
to the fact-finder that the opinion question is different and sets it apart
from all other testimony during the trial. Furthermore, the phrase builds
up the expert's opinion by making it not solely the individual expert's
opinion but enveloping the expert within his entire profession.
If the "reasonable degree of certainty" phrase is used, it should be
asked as follows:
Do you have an opinion (pause) to a reasonable degree of certainty
within your profession (pause) as to ?25
4. Hypothetical Question
In some jurisdictions, examining counsel must use a hypothetical

question when the expert relies on inadmissible evidence in reaching
his opinion. If a hypothetical question is required, this author strongly
recommends that each hypothetical question be written out in advance
and approved by the court prior to trial.
5. Opinion on an Ultimate Issue
At common law, courts did not permit an expert witness to give an

opinion on an ultimate issue in the case, and, strictly applied, this
prohibition precluded opinions on ultimate issues of fact as well as of
law.' The underlying rationale for the rule was that an expert, or any
other witness, should not be allowed to usurp the function of the jury
or the judge by making the decision for the fact-finder.
The ultimate opinion rule at common law prohibited opinions on both
ultimate issues of fact and law, and since ultimate issues of fact
25. Insert the opinion requested.

26. See FED. R. EVID. 704 advisory committee note.
1991] ExPR TESTIMONY
necessarily involve corollary and subsidiary issues of fact, both trial

lawyers and judges found the rule was very difficult to apply. As was
noted by the Advisory Committee on the Federal Rules of Evidence,
the "ultimate opinion rule was unduly restrictive, difficult of application,
and generally served only to deprive the trier of fact of useful informa-
tion." 7
'
The Federal Rules of Evidence have abolished the Ultimate Opinion

Rule. Rule 704 provides: "Opinion On Ultimate Issue-... [Tlestimony
in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by
the trier of fact" s Rule 704 implicitly distinguishes between opinions
on ultimate issues of fact and ultimate issues of law." Rule 704 requires
that an opinion on an ultimate issue must be "otherwise admissible"
which means that it must be helpful to the fact-finder under Rule 702.-
Opinions on issues of fact, be they ultimate facts or not, are helpful
to the fact-finder in understanding the evidence or deciding a fact in
issue. Opinions on matters of law, however, are essentially conclusions
on how the case should be decided and therefore are not helpful to the
fact-finder in understanding the evidence or deciding a fact in issue.
Thus, under the Federal Rules of Evidence opinions on ultimate facts
are permissible while opinions on questions of law are not. For example,
whether the defendant was negligent is an opinion on an ultimate issue
of law and is not permissible, but an opinion on whether the defendant
was exceeding the speed limit is permissible because it is a question
of fact. An opinion on whether the testator had the capacity to make
a will would be excluded as an ultimate opinion on the law, while an
opinion on whether the testator had sufficient mental capacity to know
the nature and extent of his property and formulate a rational scheme
of distribution is permissible.
Opinions which assist the fact-finder in understanding the evidence
or determining a fact in issue are permitted under Rule 702 and are
27. FED. R. EvD. 704 advisory committee note.

28. FED. R. EVID. 704.
29. FED. R. EviD. 704 advisory committee note.
30. According to Rule 702, an expert may testify in the form of an opinion if it "will
assist the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID.
702.
thereby "otherwise admissible" under Rule 704. 31 Opinions which

basically state that the plaintiff or the defendant should win are not helpful
to the fact-finder and are therefore not permitted under Rule 702 and
704 of the Federal Rules of Evidence.
G. Touchstone #6:
Explanation of Opinion-Teaching
The goal of the explanatory portion of the direct examination is to

help the fact-finder understand how the expert arrived at his opinion
so that the fact-finder may adopt the opinion as his own. Thus, this section
of the examination should focus on educating the fact-finder on the
reliability of the opinion and also the credibility of the expert teacher.
The expert should be a teacher and fully elucidate the basis, or
underlying facts, and the core thesis and methodology for each opinion.32
If the expert has given multiple opinions, then each opinion should be
explained and taught using the following organizational framework.
1. How the Expert Arrived at his Opinion
The expert should educate the fact-finder by clearly explaining (1)

the thesis and methodology used by the expert in reaching the opinion,
(2) the expert's investigation and the data relied on by the expert, and
(3) the expert's analysis of the data, particularly how the data corresponds
to the thesis and the methodology and how they support the opinion.
Topics which should be covered in the expert's explanation of her
basis for the opinion are:
(a) Introduction. You have told us your opinion is -;'33 now

let us look at how you arrived at that opinion.
(b) Thesis and Methodology Used. 34
31. FED. R. EVID. 704 (authorizing opinions on an ultimate issue).

32. See supra Section E for a discussion of the Overview Approach in which the advocate
reserves a full explanation of the underlying basis for the expert's opinion until the teaching
stage of the examination. Note also Section C(3) of Part II for a discussion of the importance
of the expert's core thesis and methodology to the credibility of the opinion.
33. Insert a summary of her opinion.
34. The expert should fully explain the thesis and methodology used to arrive at the opinion.
1991] EXPERT TESIMONY
(1) What thesis/methodology did you use for your investigation

and research in this case?
(2) Why did you choose that thesis/methodology?
(3) Is that thesis/methodology customarily used by experts in
your field?
(4) Was that the best thesis/methodology for this project? Why?
(5) Clearly and persuasively explain the thesis/methodology
used. 5 5
(c) Investigation and Data Relied Upon.
(1) What did you do to start your investigation/research for this
project?
(2) What were the parameters of your investigation/research?
(3) Explain the investigation and data collection process or what
you did to implement the thesis and methodology chosen.
(4) List the data collected and relied on by the expert. 37
(5) If there was data not collected or not relied upon by the
expert, explain what it was, and why.
(6) Explain that the data used by the expert was sufficient for
the analysis involved in this case.
(d) Analysis of Data. The expert should explain her analysis of the
data relied upon and how it interfaces with the thesis and
methodology and supports the ultimate opinion.
For each category or type of data relied upon by the expert
in reaching an opinion, there should be:
(1) data explanation;
(2) analysis of how the data relates to the expert's thesis and
methodology; 3
(3) analysis of how the data supports the ultimate opinion. 8
35. This is acritical element of the teaching process because the fact-finder must understand
and adopt the expert's core thesis and methodology as a prerequisite to accepting the expert's
opinion.
36. The expert should explain her investigation and the data relied on in reaching her
opinion.
37. In order to satisfy Rule 703, point out that this type of data is customarily relied on
by experts in this field of expertise. Lawyers typically use charts, graphs, and other visual aids
to summarize and present effectively the data relied on by the expert.
38. Lawyers universally rely very heavily on the use of charts, graphs and other visual
aids to assist the expert in data explanation and analysis. For lawyers the use of visual aids
is an integral part of the teaching process.
(e) Theory Differentiation. Trial Lawyers very strongly believe in

the psychological principle of primacy," and therefore, trial
lawyers generally present their strongest argument first. It is
recommended that the same approach be applied to theory
differentiation. Differentiating the opposing expert's theory is
an important concept that must be included in the direct
examination, and it may seem to logically fit in this portion of
the examination. Under the doctrine of primacy, however, it is
best to explain and persuade with your expert's theory first, and
then in a separate organizational segment to distinguish and
differentiate the opposing expert's theory.
2. Assumptions
The assumptions made by an expert witness are critical to the validity

of the expert's opinion and the credibility of the expert to the fact-finder.
In every case, the expert witness should expect to be cross-examined
not only on what the expert did, but more importantly on what the expert
did not do. The same vigorous cross-examination should be expected
on the expert's assumptions, or lack thereof, and how they interface
with what the expert did.
In this portion of the direct examination, the expert should very clearly
explain:
(a) what assumptions were made;

(b) why those assumptions were made;
(c) how reliable those assumptions are;
(d) what assumptions were not made;
(e) why those assumptions were not made;
(f) whether the assumptions made were of the type generally made
by experts in that particular field of expertise.
39. The psychological principle of primacy is that persons will believe and adhere most
strongly to their initial beliefs. Trial lawyers have used this psychological principle to form
the organizational technique of presenting first their best and most persuasive facts, issues,
or argument Lawyers uniformly refer to this adaptation of the psychological principle of primacy
as the "doctrine of primacy."
3. Anticipating Cross-Examination
At some point during the direct examination, the lawyer should

anticipate the ensuing cross-examination and make every attempt to
deflate it by taking the sting out of it in advance. This section focuses
on anticipating the cross-examination that attacks the expert's opinion,
as opposed to theory differentiation among competing experts.
Areas which should be anticipated as being covered during cross-
examination of the expert witness are:
(a) Credibility of the witness

(1) technical expertise and qualifications;
(2) relationship to the party and/or lawyer;
(3) difficulty in communicating. 40
(b) Validity of the expert's thesis and methodology
(1) whether the expert is within his area of expertise;
(2) integrity of the thesis and methodology within the profession;
(3) applicability of the thesis and methodology to this fact
situation.
(c) Quality of investigation and research
(1) data collection process and its validity and reliability;
(2) data relied upon and why;
(3) data not collected nor analyzed and impact on opinion.
(d) Validity of assumptions
(1) propriety of each assumption made by the expert;
(2) reliability of each assumption made by the expert;
(3) if each assumption was not made, then would the opinion
change;
(4) propriety of assumptions not made;
(5) reliability of assumptions not made;
(6) if any of these assumptions were made, then that would
change the expert's opinion;
(e) Prior writings and/or testimony. Does the expert have any prior
writings and/or courtroom testimony which relate in any way
to this case?
40. Scientist/technical person and not a public speaker, researcher not an actor, or little
experience in testifying and therefore nervous.
AMERICAN JOURNAL OF.TRIAL ADVOCACY [Vol. 15:215
To the extent that the expert witness has a valid and defensible opinion,
all of the above areas of potential cross-examination can be effectively
handled during the direct examination by placing them in their proper
contextual framework and thereby diffusing the ensuing cross-examination.
4. Theory Differentiation
If the opposing party has retained its own expert witness, it is essential,
at some point during the direct examination of that expert witness, that
the examining attorney differentiate and attack the theory underlying
the opposing expert's opinion. This process is referred to as Theory
Differentiation, and it is a critical part of presenting persuasive and
effective expert testimony. The fact-finder will believe the expert who
presents the most persuasive "theory" supporting his opinion. For purposes
of this discussion, "theory" is used in an expansive sense to encompass
the thesis and methodology chosen by the expert, the expert's investigation
and data analysis, and the assumptions made by the expert.
Theory differentiation requires a clear and careful analysis of the two
competing expert opinions, and the underlying basis for each, in order
to determine:
(a) how they are similar;

(b) where they diverge;
(c) the rationale for the divergence;
(d) a method to attack and discredit the divergences.
This theory differentiation process requires perspicacious preparation

and clear, lucid presentation by both the lawyer and the expert. Thus,
the lawyer and the expert must work closely together in this critical
part of the examination.
In conducting this theory differentiation analysis as a means for
exposing the flaws in the opposing expert's theory, the lawyer and the
expert should examine the opposing expert's anticipated testimony as
follows:
(a) opinion-why it is flawed and why ours is better;

(b) thesis and methodology-why it is flawed and why ours is better,
1991] EXPERT TEsTIMONY
(c) investigation and research-why it is flawed and why ours is

better;
(d) data relied upon-why it is flawed and why ours is better;
(e) data not analyzed and what expert did not do-why it is flawed
and why ours is better;,
(f) analysis of data-why it is flawed and why ours is better;
(g) assumptions made and not made--why it is flawed and why ours
is better,
(h) prior writings or testimony by the expert--can they be used against
the expert's analysis in this case.
The structure of the trial suggests that the plaintiff's expert witness
should explain the theory differentiation at the end of the testimony.
The defendant's expert witness, however, might be better off making
this explanation immediately following the qualifications but before
presenting his own opinion and methodology. Ultimately this decision
is a matter of judgment. As a result, the decision will depend upon many
factors, including the experience level of both the examining lawyer
and the expert witness. Experienced trial counsel and experienced experts
are capable of handling the testimony and the structure in an
unconventional manner.
5. Most Persuasive Rationale/Basis for Opinion
When possible, an effective advocate will "start strong and end strong."
Thus, the expert's explanation of his opinion should end on a high note.
To conclude his explanation of the opinion, the expert should state the
principal reasons why he is confident of his opinion, including the
underlying thesis and methodology, investigation and research, data
analysis and assumptions. To be persuasive and effective, this concluding
rationale must be a precise and succinct synthesis and not simply a re-
stating of prior testimony.
A question with which to introduce the concluding rationale for the
expert's opinion is: "You have given us your opinion that (insert a
summary of the opinion), why are you so confident of that opinion?"
AmE IAN
JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
6. Go to Next Opinion and Follow Same Outline
It is quite common for an expert to give more than one opinion in

a case. For example, most experts usually give an opinion on the condition
of a person, business, or object and also an opinion on causation for
what happened to the person, business, or object. Typically, when a
medical expert witness testifies about an injury to a person, the expert
has four opinions-diagnosis, condition, causation, and prognosis. If
the expert has more than one opinion, the examining attorney should
proceed to the next opinion and use the same outline for explaining
that opinion.
H. Touchstone #7:
Conclusion-End Strong
As noted earlier, whenever possible, an examination should start strong

and end strong. Thus, the direct examination of an expert witness must
end on a high note.4 ' If the expert has given more than one opinion,
then the entire direct examination should conclude on a high note with
a review of the expert's most significant contribution to the case and
the most persuasive rationale and basis for the expert's opinions.
L Pre-Trial Preparation
Although the seven touchstones for expert witnesses have been

presented in the framework of a direct examination at trial, they can
be effectively applied only through careful and diligent pre-trial
preparation. This is analogous to the process undertaken by a skilled
trial advocate who can give the closing argument on the key elements
in the case before preparing the cross-examinations at trial.
After the direct examination has been prepared and rehearsed once,
the attorney and the expert should continue to rehearse within the
constraints of the litigation budget and the importance of the case. The
direct examination should be practiced to reduce the likelihood of
41. If the expert has given only one opinion, see Section G(5), supra, for a concluding
rationale that will end the examination on a high note.
1991] EXPERT TEsTMONY
unwelcome surprises and to ensure that the examination does, in fact,

accomplish its goal of educating the fact-finder.
When practicing the direct examination of an expert witness, it is
important to make it as realistic as possible. The advocate should bring
in two unassociated lawyers to serve as the judge and the cross-examining
lawyer. The objective here is to simulate as closely as possible the reality
of the court room. After the practice examination, all parties involved
should hold a comprehensive review of the session with the expert. Some
lawyers are videotaping such practice examinations and then having
the expert view it to see how she appears and how she communicates
and to evaluate the persuasiveness of the substance of the testimony.
A picture is worth a thousand words, and the videotape has proven to
be a very effective means of preparing expert witnesses for their testimony
at trial.
In sum, practice makes perfect and the preparation should be
commensurate with the complexity of the case.
Many trial lawyers develop their own personal trial notebook as a
means to compile and codify their experience. Trial lawyering is a
constant learning experience and the trial notebook is an excellent way
to preserve that experience for future reference. A summary of the seven
touchstones is set forth in Appendix II so that all or a portion of them
may be integrated into a trial notebook.
II. Primer on Expert Witnesses

A. Case Analysis
The first step in the process of presenting expert testimony is to
determine whether to use an expert witness in the case. In making this
determination, the advocate should initially undertake a rigorous analysis
of the case. The type of case analysis discussed in this paper is limited
to that pertaining to the use of expert witnesses.
1. Macro Case Analysis
(a) Ultimate Request for Relief
When engaging in case analysis pertaining to the use of an expert

witness, the first step is to look at the request for relief in the complaint
AmcA JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
or the denials or affirmative defenses in the answer. What does the

advocate ultimately want in this case, or, stated differently, what is the
best case scenario for winning? In conducting a macro case analysis
of what the advocate wants in the request for relief or defense, the
questions to pose are: (1) Is an expert witness absolutely necessary?
(2) Will an expert witness be of some assistance to the fact-finder? or
(3) Is an expert witness not necessary?
(b) Issues in the Case
The advocate should examine the issues in the case through an analysis
of the causes of action or claims for relief and the affirmative defenses
in the case. In conducting this case analysis, the advocate should diagram
the elements of each cause of action and defense. Once again, the same
three questions arise: (1) Is an expert witness absolutely necessary? (2)
Will an expert witness be of some assistance to the fact-finder? or (3)
Is an expert witness not needed?42
An example of this case analysis process in a toxic tort case is: (1)
an expert is absolutely necessary indetermining causation; (2) an expert
may be of some assistance in determining the damages to the plaintiff;
and (3) an expert may be needed on the issue of the duty owed by the
defendant to the plaintiff because of human factors and/or. industry
standards.
Another example is a claim for damages in a construction cost overrun
case: (1) expert testimony may be absolutely necessary on the issue
of the cause for the cost overrun; (2) expert testimony will be of some
assistance to the fact-finder in determining the total amount of costs
incurred by the assistance to the fact-finder on the interpretation of terms
42. An example of this case analysis process in a toxic tort case is: (a) an expert is absolutely
necessary in determining causation; (b)an expert witness may be of some assistance in determining
the damages to the plaintiff; and (c) an expert witness may be needed on the issue of the duty
owed by the defendant to the plaintiff because of human factors and/or industry standards.
Another example is a claim for damages in a construction cost overrun case: (a) expert
testimony may be absolutely necessary on the issue of the cause for the cost overrun; (b) expert
testimony will be of some assistance to the fact-fider in determining the total amount of costs
incurred by the plaintiff during the overrun; (c) expert testimony may or may not be of assistance
to the fact-finder on the interpretation of terms of the contract and (d) expert testimony is
not necessary nor will it be permitted on the legal duties and responsibilities of each party
under the contract.
of the contract; and (3) expert testimony is not necessary nor will it
be permitted on the legal duties and responsibilities of each party under
the contract.
In criminal cases, identification is an essential element of the crime,
and expert testimony is absolutely necessary to interpret fingerprints,
voiceprints, DNA testing, and other forensic tests. Furthermore, some
courts have permitted expert testimony on whether the eyewitness had
the ability to perceive and identify the defendant.
2. Micro Case Analysis
(a) Issues and Sub-Issues
When examining each element in a cause of action or defense, the

advocate should analyze all of the issues and sub-issues within each
element to determine whether expert testimony is necessary, helpful,
or unneeded. Within this process, the advocate should also look at how
the various issues and sub-issues are related and whether expert testimony
is needed or helpful in assisting the fact-finder in understanding the
relationship among the various issues. For example, in a toxic tort case,
expert testimony is needed to show (1) that substances within the
defendant's control contaminated the soil in a particular area, (2) how
the ground water passing through the soil became contaminated, (3)
how the contaminated ground water came in contact with the plaintiff's
person or property, and then finally (4) what damages were caused by
the toxic substance as it passed through the environmental chain.
Persuasive expert testimony is essential for all of these issues, sub-issues,
and their interrelationship.
(b) Facts in the Case
Certain facts in a case may be of such a technical or specialized nature

that a lay person cannot readily understand them, and, thus, expert
testimony is permitted to assist the fact-finder. 43 In addition to technical
43. Examples are scientific or technical terms within the prior art in a patent case or a
licensing agreement, slang or words of art in drug deals or other criminal activities, and terms
AMEICAN JOURNAL oF TRIAL ADVOCACY [Val. 15:215
terms, there may be a collection of facts that require technical or

specialized knowledge for their interpretation." Depending on the
circumstances, expert testimony may be absolutely necessary or may
simply be helpful to the fact-finder in understanding the evidence or
deciding an issue in the case.
3. Overview of Case Analysis Pertaining to Expert Witnesses
Under Rule 702 of the Federal Rules of Evidence, testimony by an

expert witness is admissible "if scientific, technical or other specialized
knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue. ' ' The focus of Rule 702 is to "assist the
trier of fact," and the scope of the rule is to permit expert testimony
whenever it "will assist the trier of fact to understand the evidence or
to determine a fact in issue." 46 Rule 702 provides very broad
authorization for the use of expert testimony, and today trial lawyers
are making imaginative and innovative use of expert testimony. Case
analysis relating to the use of experts is now a critical part of the pre-trial
process.
Although a careful and thorough analysis of the need for expert
testimony is necessary, the effective and responsible advocate must always
concentrate on an overall analysis of the case. As the old maxim goes,
do not get so lost in the trees that you cannot see the forest. The advocate
should undertake a comprehensive analysis of the case to determine
the "cutting edges" in the case. The "cutting edges" that most significantly
affect the ultimate decision in the case can be issues, sub-issues or facts.
The question, "What aspects of the case will be the 'cutting edges' upon
which the case will turn and ultimately be decided?", must be asked
repeatedly throughout the preparation of the case. The advocate should
thoroughly analyze all of the facts and issues to find the "cutting edges"
for a particular case.
Good lawyering skills, resulting in staying within the litigation budget
and the fostering of judicial economy, require the advocate to concentrate
or words of art used in commercial or business transactions.

44. Examples are industry customs in product liability or business cases and a series of
activities viewed as a whole in gambling or other criminal enterprises.
45. FED. R. EvID. 702.
46. Id.
the use of expert testimony on those facts and issues that are the "cutting
edges" in the case. The only exception may be when the use of expert
testimony in either the preparation-stage or the trial-stage may make
a contested fact or issue into an undisputed fact or issue that will
ultimately save money and foster judicial economy.
B. Retaining an Expert Witness
Each case is unique, and the ability of an expert witness to provide

assistance relating to the particular facts and issues in a case must be
of paramount concern in the selection process. The zealous advocate
should not choose a particular expert just because he has done research
in the field or has testified in a similar case. He must conduct an analysis
of his needs and the expert's ability to meet those needs. The advocate
can apply the case analysis techniques discussed earlier to the process
of selecting an expert witness for the case. The following factors should
be examined in the process of retaining the best expert.
1. Do You Need an Expert?
Expert testimony necessarily involves scientific, technical, or specialized

knowledge that is outside the lawyer's sphere of expertise. Sometimes
expert testimony is needed in a case. and the lawyer does not know
it. Likewise, sometimes the lawyer thinks that expert testimony is needed
when it is not.
Assuming that the lawyer has conducted a case analysis on the need
for expert testimony in his case, the process should be taken one step
further. The advocate should consult with an expert in the field to
determine if expert testimony is needed in his case. Sometimes the lawyer
needs to consult with an expert to know what he wants. Early in the
case, the attorney can meet with an expert on an informal and preliminary
basis to review the facts and issues of the case and then later receive
his advice and assistance on how best to proceed with regard to expert
testimony. This initial meeting with an expert need not be expensive
or unduly time consuming. The client may have an expert within the
company which can be used, or if not, the client may know or have
a relationship with an outside expert.47
47. For example, consider a lawsuit for business losses from a breach of contract. Lay
AMERCAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
For example, consider a lawsuit for business losses from a breach

of contract. The business losses may be proven by laypersons within
the company, profit and loss statements, and the balance sheet, but the
controller should also be interviewed to determine that all of the areas
of damage are taken into account. The controller is an expert in
accounting and financial dealings and may prove to be a very valuable
resource to explain aspects of the case and to ensure that all the areas
of damages are analyzed. The controller may also lead you to an outside
financial consultant who has a specialized area of expertise in damage
and loss analysis.
In some bigger cases, experts are retained solely for the purpose of
providing litigation consulting and advice to the lawyers on the
management of the lawsuit A litigation consultant can work freely and
independently with a lawyer to provide expert analysis during the
preparation, planning, and trial stage of the lawsuit. The consulting expert
will not testify at trial, and all of the expert's work with the lawyer
is considered part of the lawyer's work product and therefore not
discoverable.' Thus, there will be two sets of experts-a litigation
consulting expert and a trial testifying expert. The value and effectiveness
of such an arrangement will depend upon the nature of the lawsuit, the
potential financial impact, and the costs in retaining the experts.
2. Finding an Expert
Once the attorney determines that an expert is needed in a particular

area, the next step in the process is to find the best expert for the
particular case. There is a skill involved in finding experts, particularly
the most appropriate expert for the case. That skill is developed and
refined through experience and the use of investigative techniques. It
persons within the company may prove business losses with profit and loss statements and
the balance sheet. Nevertheless, the controller should also be interviewed to determine that
all of the areas of damage are taken into account. The controller is an expert in accounting
and financial dealings and may be a very valuable resource to explain aspects of the case and
also to ensure that all the areas of damages are analyzed. The controller may also lead one"
to an outside financial consultant who has a specialized area of expertise in damage and loss
analyses.
48. Counsel should be aware, however, that an exception has evolved to the rule prohibiting
discovery of a non-testifying expert's work. It is a narrow exception that must meet a two-pronged
test of (a) extraordinary need by the opponent and (b) unavailability of the information through
other means.
is a very valuable skill and should be honed and developed throughout

the attorney's legal career.
When searching for an expert, the advocate should investigate the
following sources:
(a) The Client. Although the advocate may not want his client's
employees or associates testifying in the case, they may be a
ready source for contacting experts outside of the organization.
(b) The Law Firm. Most litigation law films have developed a wealth
of experience with regard to experts which should be tapped.
(c) Other Lawyers Within the Practice Area. Through this source
the attorney may receive names of experts and also information
on how they performed in other cases.
(d) Surveying the Literature in a Particular Area of Expertise
(e) Universities
(f) Research Institutes and Laboratories
(g) Professional Organization for that Particular Area of Expertise
(h) Consulting Group. Some experts have formed consulting groups
to assist lawyers in litigation.
(i) Imagination and Investigation. The sources for finding experts
are limited only by a lawyer's imagination and investigative skills.
If the advocate is having trouble finding the appropriate expert,
*he should use his imagination and stretch himself to think of
possible new sources for an expert.
3. Selecting the Best Expert
In some litigation settings, there is no choice as to who the expert

will be because the expert essentially comes along with the litigation.
Examples of the "no-choice" expert situations are:
(a) a person is injured, is treated by a physician at the hospital and

the treating physician will be an expert on plaintiff's damages;
(b) the designer of a product that is now subject to a dispute;
(c) in-house financial person in business cases;
(d) examining psychiatrist in criminal cases and other forensic experts
for the government in criminal cases;
(e) court appointed experts.
In most litigation settings, however, the lawyer can choose the expert
witness who will testify in the case. Assuming that the lawyer has done
a thorough search of the candidates, there will then be a pool of experts
to choose from, and the next step in the process is to select the best
possible expert for the case.
Selection of the expert is one of the most important parts of the case,
because an expert's testimony at trial can often be determinative of the
outcome of the case. Selecting an expert should be a thoughtful and
careful process; the time spent at this stage of the case is well worth
it and if the selection is carefully done, it will pay many dividends in
case preparation and at trial.
There are six factors to consider in the process of selecting the best
expert for a particular case.
(a) Technical Expertise
First and foremost, the expert should be an expert by qualifications,

education, training, and experience. The person should have excellent
credentials and the respect of his peers. Furthermore, the expert's training
and experience should have a relationship or nexus to the facts in the
particular case, in order for the expert's qualifications to be tied into
the particular case.
Professional writings add to the witness's credentials, but they are
also available to the opponent for cross-examination. The attorney should
undertake careful review of the witness's professional writings to
determine if the witness's expertise fits the area in question and to ensure
that the prior writings do not provide too much ammunition for cross-
examination.
. The technical expertise of a potential expert is the most basic element
in the selection process. Ultimately, at trial the validity and persuasiveness
of the expert's opinion will be a function of the expert's technical
expertise and competence. To get a good opinion that will withstand
the rigors of litigation, the advocate must have good expertise at the
beginning of the process.
1991] EXPERT TI IMONY
(b) Open Minded and Independent
For litigation purposes, one of the essential elements of a good expert

is an open mind and a willingness to conduct an independent investigation.
Although the lawyer in the case is an advocate, the expert should not
be.
When initially contacted, the expert should be open minded about
the case and should insist that she have the opportunity to conduct the
investigation and research freely and independently. If the investigation
and research is conducted thoroughly and independently, the expert's
opinion will have a much better chance of holding up during the rigors
of the litigation process, particularly cross-examination at trial.
To ensure an open, thorough and independent examination by the
expert, the lawyer should not give the expert pre-conceived notions,
ideas, or opinions, and most certainly should not ask for a particular
result. The expert should look at the facts freely and independently and
then give the attorney the benefit of his expertise. Giving the expert
marching orders to arrive at a given result will preclude objectivity and
independence and will ultimately be a liability at trial.
If, after a thorough and independent investigation, the expert's opinion
helps the case, the lawyer has a very powerful and effective opinion
to use at trial. If, however, the expert's opinion does not help the case,
or even worse hurts the case, the lawyer does not use the expert to testify
at trial, and the expert's damaging opinion is kept secure within the
lawyer's work product. Expert advice and opinion given solely to a lawyer
is considered to be part of the lawyer's work product and is usually
not discoverable." Information pertaining to an expert becomes
discoverable only when the expert is expected to testify at trial.
(c) Communication Skills
Although the independence, integrity, and strength of the expert's

opinion is critical, the value of the opinion is diminished significantly
if the expert cannot effectively communicate it to the fact-finder at trial.
The expert must be technically competent but also a teacher. The role
49. See supra note 38.

AMaucAN JouRNAL OF TRIAL ADVOCACY [Vol. 15:215
of the expert is to educate, and an educator must have sufficient

communication skills. The expert's communication skills play a major
role in three distinct areas: the ability to educate the lawyer, to educate
the fact-finder, and to withstand cross-examination.
In addition to preparing an opinion, one of the expert's primary roles
is to educate the trial lawyer in the technical areas in the case. The trial
lawyer must become completely conversant with the technical aspects
of the case, and the expert is the teacher. After the trial lawyer is educated
on the technical aspects, the expert should also assist the lawyer in
preparing for cross-examination of the opponent's expert. This process
of educating the trial lawyer requires that the expert have a basic level
of communication skills and some teaching skills. If not, it will be a
frustrating experience for both the expert and the lawyer.'
At trial the expert must use basic communication skills to educate
the fact-finder on the validity of the expert's opinion and also to withstand
the attack on her opinion during cross-examination. A simple recitation
of the expert's opinion is not helpful to the fact-finder as she may simply
reject the opinion on its face. The expert must explain and elucidate
the opinion so that when the expert is finished, the fact-finder understands
the basis and rationale for the opinion as well as the expert does. That
is effective communication.
On cross-examination, the expert must communicate with both the
cross-examining lawyer and the fact-finder. When being tested by the
cross-examiner, the expert must be able to communicate the underlying
basis and rationale for the opinion and show that he considered all the
necessary factors in reaching the opinion. The expert cannot become
rattled, nervous, or unsure of herself because of a discomfort with the
communication process. Any such negative communication traits will
almost certainly taint the expert's opinion. Thus, to be an effective and
persuasive expert witness at trial, the expert must have both technical
competence and acceptable communication skills.
(d) Prior Litigation/Courtroom Experience
There are several factors to consider when evaluating the prior litigation
and courtroom experience of a potential expert witness. Some experts
suffer from the "professional witness syndrome." Others, however, appear
on the stand as forthright or naively charming and persuasive. Still others

are consumed by terror when they testify. It is essential for the advocate
to evaluate the expert's manner. All of these traits have been seen in
individual expert witnesses, and the likelihood of any one of the traits
appearing in a witness should be very seriously evaluated.
Although prior courtroom experience is helpful in making a witness
feel comfortable in the courtroom, it should not be conclusive in the
selection process. Some witnesses testify so much that they become
professional witnesses. While some professional witnesses are very
effective, even after hundreds of appearances, others become too
comfortable in the courtroom, and they become adversaries rather than
independent experts. The inappropriate "professional witness syndrome"
describes the expert who has become so comfortable that he slacks off
on the preparation, appears over confident or flippant in the courtroom
and seems to enjoy sparring with the lawyer on cross-examination. None
of these traits enhance the credibility of the expert to the fact-finder.
On the other hand, an expert witness who is testifying for the first
time may turn out to be the best possible expert. The expert prepares
rigorously, and the lawyer prepares the witness even more rigorously.
Furthermore, the witness has a certain apprehension and naivete in the
courtroom that can enhance the credibility of the witness. However,
another witness with substantial courtroom experience can have the same
persuasive traits. Each expert, therefore, must be evaluated independently,
and the critical question is not prior courtroom experience, but rather
the validity and strength of the expert's opinion and the expert's ability
to communicate and teach.
Finally, if a potential expert witness has testified in prior cases, the
advocate will benefit by obtaining the names of the lawyers involved
in the case and, if possible, a transcript of the examination at trial,
particularly the cross-examination. The lawyers in the other cases may
be consulted to obtain information on the strengths and weaknesses of
the witness as well as information on how the witness reacts at trial.
The transcript of the trial examination is a dry record, which does not
clearly depict the credibility of the witness's performance. However,
it will give the lawyer an idea of how the expert handled questions at
trial.
AMEmCAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
(e) Cost
One of the factors to consider in selecting an expert is cost. Each

case has a litigation budget which may be the controlling factor in the
final selection of an expert witness. For example, the preeminent expert
in the field for the particular case may be a great distance from the
attorney's office and the trial site, thereby making travel costs prohibitive.
(f) In-House Versus Outside Experts
Corporate clients usually have experts within the organization. In-house

experts are easy to locate, readily accessible and usually too willing
to please their boss, the corporate client. Although in-house experts can
be used effectively on factual matters, they should not be used for
opinions which significantly affect the outcome of the case. In-house
experts are too closely tied to one of the parties, and this relationship
severely impairs their credibility.
For critical issues in the case, the in-house experts can be used to
assist the lawyer in understanding the case, finding a suitable outside
expert, and assisting in the preparation of the case for trial. Retaining
an outside expert lends credibility to the expert's opinion and also
provides an external and independent look at the operations of the
company pertaining to the areas involved in the lawsuit. The independence
of the outside expert is almost always worth the extra cost involved.
These six factors should aid the trial lawyer in selecting the best
possible expert for each individual case. The expert's technical expertise
and ability to communicate are the most important attributes of an expert
witness, but all six of the factors must be considered in the final selection
process.
C. Five Keys for Presenting Expert Testimony
Award winning plays do not just happen. Likewise, effective and

persuasive expert testimony does not just happen at trial, even with a
brilliant expert and a brilliant lawyer. The five key elements that are
always present when expert testimony is effective and persuasive at
trial are: (1) pre-trial preparation, (2) the expert's technical expertise
and specialized knowledge, (3) the quality of the expert's opinion, (4)
the organization of the expert testimony, and (5) the expert's ability
to educate the fact-finder.
1. Pre-Trial Preparation
After the advocate has conducted a thorough case analysis to determine

whether expert testimony is needed, on which issues, and after the
appropriate expert has been retained, the advocate must work with the
expert to prepare the case for trial. The pre-trial preparation process
with an expert witness can be broadly categorized into six distinct areas.
This analytical framework should assist the lawyer in the preparation
process and may also encourage the experienced lawyer to develop and
refine these categories and, perhaps, add new ones.
(a) Assignment
The lawyer informs the expert of the assignment and supplies the
expert with the information necessary for the expert to conduct the
investigation. The lawyer should also inform the expert of the scope
of the assignment and the specific matters to be investigated. At this
stage of the working relationship, the lawyer should provide only broad
guidelines to the expert so that the expert has the freedom to conduct
a thorough and independent investigation. The lawyer's assignment to
the expert should not be so narrow that it cuts off a potential source
of valuable information, nor should it be so broad that it does not provide
sufficient guidance to the expert. It is anticipated that the lawyer and
expert will meet frequently to refine the scope of the investigation,
exchange materials and background information and discuss legal issues.
(b) Independent Investigation
After receiving the assignment, the expert should conduct a completely

independent investigation without any preconceived notions as to the
result. At this stage of the preparation, the lawyer should be careful
not to require, implicitly or explicitly, the expert to reach a certain
conclusion. To withstand the rigors and test of the litigation process,
it is important that the expert's initial investigation be as thorough and

independent as possible.
(c) Lawyer Educates Expert
After the expert has conducted an initial investigation, he provides

the lawyer with his preliminary analysis and conclusions. The lawyer
then thoroughly discusses the legal ramifications with the expert. The
lawyer educates the expert on the legal issues and the legal requirements
for the data, analysis, and conclusions.
(d) Expert Educates the Lawyer
In the working relationship between the lawyer and the expert, the
expert also educates the lawyer on the technical matters involved in
the case. The lawyer needs to know the technical matters in order to
understand the case better and prepare a cross-examination of the
opponent's expert. The lawyer must become completely conversant with
the technical information and, for the purposes of the narrow confines
of a particular case, become an expert in his own right Trial lawyers
are often referred to as having "bathtub minds." A lawyer becomes
involved in a case concerning expert engineers and learns everything
there is to know about that particular area of engineering; the bathtub
is filled. The case is tried, and with time the information slowly drains
away leaving a ring of technical expertise for future cases or cocktail
discussions.
(e) Lawyer and Expert Work Together
The lawyer and expert must work together to organize the follow-up
investigation and research, to analyze the data, and to refine the opinion.
The expert's work must be analyzed and re-analyzed, examined and
cross-examined, in order to present persuasively the expert's opinion
and the underlying basis for that opinion and to survive the rigors of
cross-examination.
1991] EXPERT TESTIONY
(f) Final Trial Preparation
After the lawyer and the expert have worked together analyzing the
data and refining the opinion, the expert's investigation and research
is completed, and it is time to prepare the expert for trial. The final
trial preparation for the expert should revolve around the seven
touchstones discussed in Part I above.
An experienced trial lawyer has described trial work as preparation,
preparation, preparation, with a little time in court. Expert testimony
which is both helpful and persuasive for the fact-finder must be carefully
and painstakingly prepared and presented in a clear and cogent fashion.
That just does not happen by itself; it takes long hours of careful
preparation.
2. The Expert's Technical Expertise/Specialized Knowledge
An expert's technical expertise or specialized knowledge is the central

element qualifying the person to be an expert witness at trial. The expert
witness is only as valuable to the case as the expert's technical expertise
or specialized knowledge. It is imperative that the expert witness has
sufficient qualifications and experience in the specialized area in which
he is testifying. The expert's qualifications and experience are the
foundation upon which the expert's investigation, research, and opinion
are judged. Furthermore, the expert's technical expertise, qualifications,
and experience are relevant to the credibility of the witness, and they
are significant factors for the fact-finder to evaluate in determining the
credibility of the expert witness.
Having retained an expert with technical expertise or specialized
knowledge within a specific area, it is essential that the expert's work
in the case remain within the scope of the expert's field of expertise.
The advocate must avoid the temptation to allow the expert stray from
his area of expertise and never specifically ask the expert to perform
work or prepare an opinion outside the expert's specific area of expertise.
At times it may be very tempting for an attorney to allow his expert
to stray from the narrow confines of his own expertise because he is
already working on the case and knows everything about it and because
the new area is closely related to his field of expertise. Even if the expert
AMERiCAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
feels confident handling a matter technically outside his area of expertise,

the attorney must require him to stay within his proficiency. The possible
efficiency of having the expert work on additional matters is not worth
the risk of potential damage to the case in either pre-trial preparation
or on cross-examination at trial. Every time an expert strays outside
his field of expertise, the pre-trial preparation loses quality, the expert
is not as comfortable with the material at trial, and the cross-examination
can be potentially devastating. A predictable maxim of litigation is that
whenever an expert strays outside of his area of expertise, it almost
always results in failure at trial. Moreover, the expert's failure in a
tangential area can taint all of the expert's opinions and work in the
case.
3. The Quality of the Expert's Opinion
"Garbage in and garbage out." The first principle with regard to expert
testimony is that the quality of an expert's opinion is directly proportional
to the quality of her investigation and research. If the expert does quality
work, then she will produce a quality opinion.
The major focus with regard to the quality of an expert's opinion
should be the expert's thesis and methodology. Every opinion has a
thesis and a methodology as its base. An expert's testimony will be
persuasive if her thesis and methodology are valid and are also understood
and believed by the fact-finder.
The facts, figures, tests, or other data and the expert's analysis leading
up to the opinion are but appurtenances which develop the core thesis
and the methodology underlying the opinion. The advocate wants the
fact-finder to accept the result of the expert's work. To achieve that
goal, the advocate must persuade the fact-finder of the validity of the
thesis and the methodology on which expert bases her opinion. An
analysis of the expert's core thesis and the methodology employed is
also useful when cross-examining the opponent's expert. The zealous
advocate should "go for the jugular" by preparing the cross-examination
to attack the opposing expert's thesis and methodology. If other factors
in the expert's opinion need to be included in the cross-examination
of an expert witness, they can be more readily handled on cross-
1991] EXPaT TEsTImONY
examination within a structure or framework in which the primary attack

is on the expert's core thesis and methodology.
The importance of the core thesis and methodology for an expert's
opinion is seen most clearly in cases where there is a battle of experts.
The ultimate resolution of the conflict between the experts usually depends
upon thesis and methodology differentiation. How is one expert's thesis
and methodology different from the other expert's and which expert
will be believed by the fact-finder?
An example of an expert's core thesis and methodology, as it relates
to the quality of the expert's opinion and also the process of theory
differentiation, is illustrated in the hypothetical PierceElectricv. Smith
Construction Co. case file. The Pierce Electric Co. case is a lawsuit
over damages caused by a large construction cost-overrun. The cost-
overrun is admitted, and the issue for the fact-finder is the determination
of damages owed to the plaintiff because of the overrun.
The plaintiff's financial analyst uses a "total cost" approach as its
core thesis and methodology to arrive at a total damage calculation,
while the defendant's financial analyst uses a "specific cost itemization"
approach. In this case, the underlying data, calculations, and analysis
by each party's accountants is not significant because they are only a
product of the expert's choice of approach, thesis, or methodology. The
key factor in this case is theory differentiation. How the underlying
theories differ and which is more credible are essential questions for
the lawyer to consider.
Another example of the importance of the expert's thesis or
methodology and the technique of theory differentiation is a case
involving damages resulting from a breach of contract. An operator
of vending stations has a contract with a state to provide and maintain
vending machines at rest-stops along the state's roadways. The State
breaches the contract, and now the question is the amount of damages
suffered by the vending operator during the remaining period of the
contract. Experts for both the vending operator and the state present
opinions on the total amount of damages. The plaintiff's expert estimates
damages at $1.2 million, while the defendant's expert reaches a figure
of $160,000. The core thesis and methodology of the plaintiff's expert
is a "revenue per vending station" approach. The defendant's expert,
however, uses a "revenue per mile" approach. The resolution of the
AMEICAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
case by the fact-finder depends on which expert's core thesis and

methodology is most credible and the process of theory differentiation
between the two experts. Thus, one of the essential tasks for presenting
effective and persuasive expert testimony is for the lawyer to analyze
and organize carefully the preparation around the expert's core thesis
and methodology. Theory differentiation and an analysis of the expert's
theory are critical for both the direct examination of the expert and the
cross-examination of the opponent's expert.
4. The Organization of the Expert Testimony
The lawyer has the best expert for the case; the expert's technical
expertise and specialized knowledge is superb; the expert has conducted
a thorough and careful investigation; and the expert's opinion is first-rate.
The lawyer, however, is not yet ready for the direct examination of the
expert witness at trial. The lawyer must now carefully organize the
expert's testimony to ensure that the expert not only discloses the opinion
to the fact-finder, but also educates and persuades the fact-finder. Effective
and persuasive expert testimony does not just happen, even with a brilliant
lawyer and a brilliant expert. The expert's testimony must capture the
audience. The examination cannot accomplish this task by sailing over
the fact-finder's capabilities to absorb the technical data or specialized
knowledge. Good organization establishes the way for the fact-finder
to reach the desired result, rather than leaving it to the innate abilities
of the expert to explain her work and opinions. Without proper
organization, the fact-finder will become mired in technical data and
specialized knowledge.
The lawyer must organize the expert's testimony to educate the jury
by starting with basic concepts and building on them until the fact-finder
can readily understand the expert's opinion. Organization and explanation
are essential to educating the fact-finder and persuading the fact-finder
to adopt the expert's opinion.
Based on this author's experience, the test of a successful direct
examination is to view the expert's testimony from the perspective of
the fact-finder. The fact-finder has neither technical expertise nor
specialized knowledge like the expert. She has not lived with the case
or thoroughly understood it like the lawyer, but she must make a decision
19911 EXPERT TESTIMONY
based upon what he hears and sees in the courtroom. The expert and
the lawyer should not condescend to the fact-finder, rather, they should
begin with basics and build upon them. Even a modest level of technical
expertise or specialized knowledge should not be assumed. The lawyer
and the expert should concentrate on raising the fact-finder's level of
understanding through the education process. How information is
presented in terms of organization and structure significantly affects
the fact-finder's ability to comprehend and understand.
The following examples of the direct examination of an expert witness
demonstrate different organizational structures and persuasiveness from
the perspective of the fact-finder. In the first example, the lawyer qualifies
the witness as an expert in his particular area of expertise; the court
accepts the witness as an expert in that field; and then the lawyer tenders
the expert's written report" The organization in this instance is very
simple and straightforward-qualify the expert, offer the report and
then let the fact-finder sort it out. The quality of the result in this instance
will probably be directly proportional to the quality of the organization
and explanation.
In a second example, the lawyer qualifies the witness as an expert
in her particular area of expertise; the court accepts the witness as an
expert; the lawyer offers the expert's written report into evidence and
then asks the expert to explain his research and findings. This inevitably
results in a long, rambling, and disjointed discourse by the expert. The
testimony is not organized to educate and explain. The judge mentally
gives up, and either stops paying attention or forces the examination
to a halt. The judge is essentially in the same position as having just
received the report, with the exception that the judge's time has been
wasted. Maybe this is why simply offering the expert's report and getting
on with the trial has received some support.
In the third example, the lawyer qualifies the witness as an expert
in his particular field of expertise; the court receives the witness as an
expert; the expert explains what he did in the case in terms of his
investigation and research; the expert introduces basic concepts on the
core thesis involved in the expert's approach; the expert explains and
50. In the United States and some other common law jurisdictions, the reportis not accepted
as evidence; it is only the expert's oral testimony of her opinion that is evidence in the case.
AMERICAN JouRNAL OF TRIAL ADVOCACY (Vol. 15:215
clarifies the methodology used; and finally the expert explains his opinion.
The examination is organized to educate and persuade the fact-finder.
There are many examples of an organization that will effectively educate
and persuade. The key element is that the lawyer wants it to be organized,
takes the time to organize it and has the discipline to implement the
organization with the expert at trial. Critical to an effective organization
of the direct examination is the importance of concepts as opposed to
details. The advocate must stress concepts and minimize details.5 '
5. The Expert's Ability to Educate the Fact-Finder
Assuming that the expert's and the lawyer's pre-trial preparation has
been thorough and careful, that the expert has the requisite technical
expertise or specialized knowledge, that the expert's opinion is valid,
and that the expert's testimony at trial has been carefully organized and
structured in a framework to persuade, the attorney must then concentrate
on the final mode of trial preparation: preparing the expert to educate
the fact-finder. The expert's primary role at trial is to educate the fact-
finder so that the expert's opinion with the advocate's help will persuade
the fact-finder to reach the desired result.
Thus, in preparing the expert for her trial testimony, the lawyer should
focus on educational concepts and view it from the perspective of the
student rather than the teacher. The goal is to assist and help the fact-
finder. Therefore, the focus should be on the needs of the fact-finder
rather than the needs of the expert.
Conclusion
When preparing the trial testimony with the expert witness, the advocate
must keep in mind the educational process, reflecting upon things which
he has learned from the educational process, particularly those
teaching/learning techniques that were helpful and those that were not.
Every lawyer has been through an educational process which included
51. A sample organizational structure for the direct examination of an expert witness is
presented in Part I of this paper entitled the "Seven Touchstones for the Direct Examination
of an Expert Witness."
19911 EXPERT TEsTIMONY .259
some great teachers, good teachers and poor teachers. In those courses
with bad teachers, some students learn, and some do not. The amount
of learning by the students depends upon each person's work ethic,
interest and intelligence. In the fact-finding process at trial some judges
work hard, some do not, and some cannot because of time pressure.
Some judges may be particularly interested in the case, and some may
not. Some judges are bright, some are not and most are somewhere in
the spectrum in between. The same analysis is true for jurors in a jury
trial and, although they might not be as bright as the judge, there are
more of them. The quality of teaching does affect the learning process,
and judges and juries are no different than students when it comes to
understanding and comprehending expert testimony. In presenting expert
testimony, the advocate has the duty to educate the fact-finder on his
expert's opinion and, thus, the advocate cannot responsibly leave the
educational process solely to chance. He must plan and carefully prepare
the testimony so that it does, in fact, educate and persuade the fact-finder.
AMIcAN JouRNAL oF TRiAL ADVOCACY [Vol. 15:215
Appendix I
Federal Rules of Evidence
Pertaining to Expert Testimony*
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to
the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
Rule 704. Opinion on Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the form of

an opinion or inference otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of
*The text of these rules is as amended through April 1, 1990. The Federal Rules
of Evidence govern all judicial proceedings for the United States Courts and Magistrates. The
Federal Rules of Evidence have now been adopted, in whole or in part, by almost all of the
states, and therefore these provisions will most likely govern local state court proceedings.
1991] EXPERT TlSTIMONY 261
a defense thereto. Such ultimate issues are matters for the trier of fact
alone.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give

reasons therefor without prior disclosure of the underlying facts or data,
unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.
Appendix II
Summary of Seven Touchstones
for Presenting Expert Testimony
A summary of the seven touchstones is set forth here so that all or
a portion of them may be integrated into a trial notebook.
Seven Touchstones With Subtopics for

the Direct Examination of an Expert Witness
1. Introduction-Identification and Relationship to the Case
2. Qualifications
3. Tender Witnesses and Experts
4. Assignment and Overview of Basis for Opinion
5. Opinion
6. Explanation of Opinion-Teaching
7. Conclusion-End Strong
Touchstone #1: Introduction-

Identification of Expert's Relationship to the Case
(a) State name, occupation or profession, and business address

(b) Explain area of expertise or specialty
(c) "Have you been asked to (insert a summary statement describing
the investigation by the expert)?"
(d) "Have you prepared an opinion on (insert a summary statement
of the opinion)?"
(e) "Before we get to your opinion in this case, let's look at your
qualifications and expertise to give such an opinion."
(f) Then go directly to the witness' qualifications
Touchstone #2: Qualifications
(a) Topic areas for qualifications

(1) Education;
(2) Special Training;
(3) Experience;
1991] EXPERT TESTMONY"
(4) License-Certification;
(5) Publications;
(6) Teaching Experience; and
(7) Experience as an Expert Witnes&/Pior In-Court Testimony
(b) Tie the Expert's Qualifications into this Case
(c) Priority of Persuasiveness of the Qualifications
(d) Explanation of Expertise or Specialty
(e) Stipulating to the Expert Witness's Qualifications
Touchstone #3:
Tender Witness as an Expert in a Particular Field
"If the court please, I tender John Doe as an expert in (insert area
of expertise)."
Touchstone #4:
Assignment and Overview of Basis for Opinion
(a) Expert's Assignment

(1) "Have you been retained to examine/investigate/evaluate
the (insert a summary of the expert's assignment) in this
case?"
(2) "Are you being compensated for your time?"
(3) "Is that compensation arrangement the usual and regular
fee for these types of matters?"
Or-
"Is that compensation arrangement the usual and regular
fee in your field of expertise?"
(4) "What was your assignment in this case?"
(b) Overview of Basis for Expert's Opinion-Methodology Used
and Data Analyzed by the Expert
(1) "You mentioned that your assignment in this case was
to (insert assignment). How did you fulfill that
assignment?"
Or-
"What investigation/research did you do for that
assignment?"
(2) "What methodology did you use for your investiga-
tion/research?"
(3) "Is that methodology customarily used by experts in your

field?" (See Fed. R. Evid. 703.)
(4) Briefly explain the methodology used and why it is
applicable to this case.
(5) "What data did you analyze?"
(6) "Is that type of data customarily relied on by experts
in your field?" (See Fed. R. Evid. 703)
(7) "Was the data analyzed sufficient for the methodology
used on this project?"
(c) Assumptions-Save for Later
Touchstone #5: Opinion
(a) Multiple Opinions. Separate out each opinion and elicit them
seriatim--opinion #1, opinion #2, etc.
(b) Two Questions for Each Opinion
(1) "Do you have an opinion as to (insert the issue at hand)?"
(2) "What is that opinion?"
(c) Reasonable Degree of Certainty: "Do you have an opinion
(pause) to a reasonable degree of certainty within your
profession (pause) as to (insert the opinion requested)?"
(d) Opinion on an Ultimate Issue. An expert is permitted to give
an opinion on an ultimate issue of fact.
Touchstone #6:
Explanation of Opinion-Teaching
(a) How Expert Arrived at the Opinion

(1) Introduction. "You have told us your opinion is that
(insert a summary of the opinion); now let's look at how
you arrived at that opinion."
(2) Thesis and Methodology Used. The expert should fully
explain the thesis and methodology used in arriving at
the opinion. Sample questions/topics are:
(i) "What thesis/methodology did you use for your
investigation and research in this case?"
(ii) "Why did you choose that thesis/methodology?"
(iii) "Is that thesis/methodology customarily used
by experts in your field?"
(iv) "Was that the best thesis/methodology for this

project? Why?"
(v) Clearly and persuasively explain the thesis/-
methodology used. This is a critical element
of the teaching process as the fact-finder must
understand and adopt the expert's core thesis
and methodology as a prerequisite to accepting
the expert's opinion.
(3) Investigation and Data Upon Which Opinion Relies.
The expert should explain her investigation and the data
relied on in reaching that opinion. Sample questions/-
topics are:
(i) "What did you do to start your investigation/-
research for this project?"
(ii) "What were the parameters of your investiga-
tion/research?"
(iii) Explain the investigation and data collection
process--basically what the expert did to imple-
ment the thesis and methodology chosen.
(iv) List the data collected and relied on by the
expert.
" In order to satisfy Rule 703 of the Federal
Rules of Evidence, point out that this type
of data is customarily relied on by experts
in this field of expertise.
* Lawyers typically use charts, graphs and other
visual aids to summarize and effectively
present the data relied on by the expert.
(v) If any data was not collected or not relied upon
by the expert, explain what it was and why.
(vi) Explain that the data used by the expert was
sufficient for the analysis involved in this case.
(4) Analysis of Data. The expert should explain her analysis
of the data on which he relied and how it interfaces with
the thesis and methodology and thus supports the ultimate
opinion.
For each category or type of data relied upon by the
expert in reaching an opinion, there should be:
(i) data explanation;
AMEicAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
(ii) analysis of how the data relates to expert's thesis

and methodology;
(iii) analysis of how the data supports the ultimate
opinion.
Lawyers universally rely very heavily on the use of
charts, graphs and other visual aids to assist the expert
in data explanation and analysis. For lawyers the use
of visual aids is an integral part of the teaching process.
(5) Theory Differentiation-Save for Later
(b) Assumptions. In this portion of the direct examination, the
expert should very clearly explain:
(1) what assumptions were made;
(2) why were those assumptions made;
(3) how reliable those assumptions are;
(4) what assumptions were not made;
(5) why those assumptions were not made; and
(6) whether the assumptions made and not made were of
the type generally made by experts in that particular field
of expertise.
(c) Anticipating Cross-Examination. Areas that should be
anticipated being covered during cross-examination of your
expert witness are:
(1) Credibility of the Witness
(i) technical expertise and qualifications
(ii) relationship to the party and/or lawyer
(iii) difficulty in communicating-scientist/technical
person and not a public speaker, researcher not
an actor, or little experience in testifying and
therefore nervous.
(2) Validity of the expert's thesis and methodology
(i) whether the expert is within her area of expertise
(ii) integrity of the thesis and methodology within
the profession
(iii) applicability of the thesis and methodology to
this fact situation
(3) Quality of investigation and research
(i) data collection process and its validity and
reliability-what the expert did;
(ii) data relied on and why-what the expert did;
(iii) data not collected nor analyzed and impact on

opinion-what expert did not do. If expert
would have considered "X," then that would
change the opinion.
(4) Validity of assumptions
(i) propriety of each assumption made by the expert;
(ii) reliability of each assumption made by the
expert;
(iii) if each assumption was not made, then would
change the opinion;
(iv) propriety of assumptions not made;
(v) reliability of assumptions not made;
(vi) if any of these assumptions were made, then
that would change the expert's opinion.
(5) Prior writings and/or testimony. Does the expert have
any prior writings and/or courtroom testimony which
relate in any way to this case?
(d) Theory Differentiation. Theory differentiation requires a clear
and careful analysis of the two competing expert opinions and
the underlying basis for each and in order to determine:
(1) how they are similar;
(2) where they diverge;
(3) the rationale for the divergence; and
(4) a method to attack and discredit the divergences.
In conducting this theory differentiation analysis as a means
for exposing the flaws in the opposing expert's theory, the
lawyer and the expert should examine the opposing expert's
anticipated testimony as follows:
(1) opinion-why it is flawed and why ours is better;
(2) thesis and methodology-why it is flawed and why ours
is better,
(3) investigation and research-why it is flawed and why
ours is better,
(4) data relied upon-why it is flawed and why ours is better,
(5) data not analyzed and what expert did not do--why it
is flawed and why ours is better,
(6) analysis of data-why it is flawed and why ours is better,
(7) assumptions made and not made-why it is flawed and
why ours is better,
AME cA JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
(8) prior writings or testimony by the expert-can they be

used against the expert's analysis in this case.
(e) Most Persuasive Rationale/Basis for Opinion. There is a maxim
among trial lawyers that whenever possible an effective advocate
should "start strong and end strong." Thus, the expert's
explanation of his opinion should end on a high note. As the
conclusion for the explanation of the opinion, the expert should
state the principal reasons why he is confident of his opinion
including the underlying thesis and methodology, investigation
and research, data analysis, and assumptions. To be persuasive
and effective, this concluding rationale for the opinion must
be a precise and succinct synthesis and not simply a rehash
of prior testimony.
A question to begin the concluding rationale for the expert's
opinion is:
"You have given us your opinion that (insert a summary
of the opinion), why are you so confident of that opinion?"
(f) Go to Next Opinion and Follow Same Outline
Touchstone #7: Conclusion-End Strong
If the expert has given onlyone opinion, then see 6(e) above for
the concluding rationale that will end the examination on a high note.
If, however, the expert has given more than one opinion, then the
entire direct examination should end on a high note with a review of
the expert's most significant contribution to the case and the most
persuasive rationale and basis for the expert's opinions.

Presenting Expert Testimony

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Presenting Expert Testimony

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Notre Dame Law School

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Presenting Expert Testimony

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Mindful that the readers of this Commentary include both experienced

I. Seven Touchstones for a Persuasive

in the glory of a recent victory, almost never regales the audience at

1. Introduction-Identification and Relationship to the Case;

B. Touchstone #1: Introduction-

The introduction should clearly identify the witness. The witness's

1. What is your name?

7. Before we get to your opinion in this case, what are your

The traditional practice in the examination of expert witnesses is to

C. Touchstone #2: Qualifications

Eliciting the qualifications of the expert witness lays the proper

An outline for eliciting the expert's qualifications

1. Topic Areas for Qualifications

2. Tie the Expert's Qualifications Into the Case

3. Priority of Persuasiveness of the Qualifications

Many lawyers focus a great deal of attention on the witness's

4. Explanation of Expertise or Specialty

5. Stipulating to the Expert's Qualifications

In some instances, particularly with a very well qualified expert witness,

then examining counsel should request a stipulation that includes not

counsel to inquire whether counsel has any objections to the witness

3. Insert area of expertise, such as damage evaluation, metallurgical engineering, toxicology,

that there is no objection to the witness's qualifications. If opposing

1. The Expert's Assignment

(a) Have you been retained to examine/investigate/evaluate the

2. The Overview of the Basis for the Expert's Opinion

The Federal Rules of Evidence permit an expert to give an opinion

4. Insert a summary of the expert's assignment.

7. Insert a summary of the expert's assignment.

The assumptions made by the expert in the investigation or research

4. Evidentiary Principles Relating to the Basis for an

13. See FED. R. EviD. 703. Rule 703 provides:

Bases of Opinion Testimony by Experts-The facts or data in the particularcase upon

FED. R. EVID. 703.

14. FED. R. EvID. 703.

in a modem technological society. Rule 703 basically abolished the

1. The facts or data in the particular case upon which an expert

(a) perceived by the expert before trial;

2. If the facts or data upon which an expert bases an opinion are

15. See FED. R. EvID. 703 advisory committee's note.

F. Touchstone #5: Opinion

In the organizational structure of the direct examination, it is now

2. Two Questions for Each Opinion

Traditionally, two questions are asked for each opinion:

(a) Do you have an opinion as to ?20

This procedure has been developed to allow opposing counsel an

19. See FED. R. EvID. 702 advisory committee note.

finder. The two-question format also serves to emphasize the uniqueness

3. Reasonable Degree of Certainty

Traditionally, to be admissible in court, an expert's opinion must be

In some jurisdictions, examining counsel must use a hypothetical

5. Opinion on an Ultimate Issue

At common law, courts did not permit an expert witness to give an

25. Insert the opinion requested.

necessarily involve corollary and subsidiary issues of fact, both trial

The Federal Rules of Evidence have abolished the Ultimate Opinion

27. FED. R. EvD. 704 advisory committee note.

thereby "otherwise admissible" under Rule 704. 31 Opinions which

The goal of the explanatory portion of the direct examination is to

1. How the Expert Arrived at his Opinion