Beating the Daubert challenge:
Lawyering testimony for admissibility.

One of the most common missteps in the cases occurs when courts exclude good, reliable, nonscientific testimony because it fails Daubert's test for scientific testimony. The Daubert progeny provide a test for nonscientific testimony but it raises some subtle issues and unless those issues are raised it is easy for a judge to erroneously apply the Daubert scientific test, almost guaranteeing the exclusion of the nonscientific testimony.

One of our recent cases illustrates. An accountant was prepared to testify as to damages but his testimony was opposed by a motion in limine that argued that the accountant's testimony did not meet the Daubert criteria. The motion articulated Daubert's factors 1-4 and explained how the accountant's testimony failed on all four of them, dooming it to the realm of junk science and rendering the testimony inadmissible.

The attorney who had hired the expert called us, basically admitting defeat: No, he said, the expert's methods had not been tested; no, they could not find any peer reviewed study that used the method; no, the expert did not know the error rates; no, there was no evidence that the method was generally accepted; and yes, the expert had created his method just for this litigation.

We showed that testing and error rate analysis were scientific criteria not applicable to this expert's methods, which were learned but not scientific. And we showed that what he had done was a simple textbook example of accounting principles straight out of a popular university intermediate accounting text, so that his testimony was not only based upon peer reviewed principles, it looked like it was generally accepted as well. We mixed in some references to meeting GAAP and FASB standards to bolster our claims of general acceptance. The testimony came in virtually in its entirety, much to the pleasure of the attorney who had called us believing that his expert was sure to be excluded.

 

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