The Commercial Litigation Daubert Newsletter
Because of its dispositive capability, a Daubert challenge is part of a complete legal strategy in any commercial litigation that involves the testimony of experts. This has been true since Daubert was handed down but is more so since Weisgram v. Marley, 528 U.S. 440 (2000), which appears to give adverse Daubert rulings more finality.
Until Weisgram, when appellate courts excluded expert testimony that was an indispensable element of the matter at bar, the typical action was to reverse and remand. Weisgram stands out because the Eighth Circuit effectively reversed, yet declined plaintiff's request for remand. As a result, the ruling disposed of the case rather than sending it back down to the district court for further consideration of the crucial expert testimony matter. The Supreme Court said that, since Daubert, "parties relying on expert evidence have had notice of the exacting standards of reliability such evidence must meet." And that it "is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail." [Request This Issue]
This issue of the newsletter discusses how Daubert strategies can control important classes of the securities litigation. More specifically, this issue discusses lawyering the regression-type expert testimony that the law apparently specifies for securities fraud litigation. More broadly, it is about an opportunity to win securities cases in a novel and sophisticated way that generalizes to a variety of other commercial litigation practice areas. A future issue will discuss Daubert's role in other kinds of securities litigation. [Request This Issue]
I gave a lecture a couple of months ago on what distinguishes a Daubert issue from a Kumho Tire issue, and one of the things that jumps out in perusing the relevant cases is that this Daubert/Kumho Tire dividing line seems to be an especially important threshold issue in a variety of commercial litigation matters. Much of the reason for this is that a great deal of the expert testimony proffered in commercial litigation is perceived as being close to the line on this question. But in actuality, most of this testimony is not really close to the Daubert/Kumho dividing line at all. [Request This Issue]
This issue of The Commercial Litigation Daubert Newsletter takes a critical look at the admissibility of junk expert testimony. This discussion may be seen as a counterpoint to the last issue's discussion; there I discussed some arguably reliable commercial litigation damages testimony that was perhaps improperly excluded and some lawyering suggestions for how such testimony might have found admissibility. This issue, perhaps by way of balance, looks at the junk side of expert testimony, beginning with the well-documented incentives that plaintiffs and their lawyers have for bringing junk-testimony-based junk litigation, and concluding with a discussion of Daubert's ability to parry such junk litigation by eliminating those incentives. The strategies discussed here work equally well on junk litigation whether it is based upon junk science as traditionally construed, or on the soft-science, social science or non-science versions of junk expert testimony. [Request This Issue]
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