Hello again! The blog has been on a hiatus for a couple of weeks: my crappy laptop decided to finally give up the ghost, and I was in the process of moving. I’ll now be resuming regular posting on a “law school schedule” of once a week. I’ll be doing “bonus” posts for awhile here, though, selections from an explanation of this year’s college case law that I’m working on. Since they pertain only to college competitors and only to this year’s case, it’s a bit outside the main scope of my goals, but I hope someone will get value out of it anyway.
To business. Last time, we talked about various ways a lack of foundation objection to an expert witness’s conclusions can be beefed up in hopes of keeping the conclusions out entirely. Now let’s talk a bit about what to do if you’re on the receiving end of those techniques. Start by remembering that if opposing counsel goes for a voir dire, there isn’t anything you can do to block it. They’re entitled to request one and there’s no motion or objection you can make that overrides that entitlement. The judge can decide not to grant one, but that’s up to their discretion. Remember also that whatever technique opposing counsel is using to attempt to block your witness’s conclusions, your situation is actually pretty simple. You’re just responding to a Lack of Foundation argument based in whatever information they manage to get out. Your approach should change depending on what they do, however. Opposing counsel, like you, needs to connect facts and law in order to make a good argument. Lots of them fail to do that, however, and your argument should change depending on which mistake they make. They might make the mistake of only describing the law: asserting that the witness will admit to having failed one of the four requirements of expert witness testimony (Rule 702) or that the evidence on cross will show that the witness failed one of those elements. In that case you should probably argue that their claim is false- the witness will admit no such thing and the evidence has shown the exact opposite: that this testimony satisfies every one of Rule 702’s elements. That argument would go something like: “Your Honor, may I respond?” [judge nods] “Opposing counsel claims that the witness will admit to failing to use reliable procedures and methods. The witness has just asserted that they did use such methods, and explained both those methods and his expertise in this area. We have no reason to believe the witness will suddenly change his mind about the reliability of his methods, especially given all of the evidence he’s described supporting those methods.” This argument is even simpler if its had after a voir dire: you can point out that the witness admitted no such thing.
Opposing counsel might make the opposite mistake, that of focusing in on the facts to the exclusion of the law, just reciting a list of all the reasons he can come up with to consider the evidence questionable. In that case, hammer the lack of connection between the rule and the facts. The key thing to remember is that no amount of evidence undermining a method and an expert matters if that method and expert still meet the criteria of Rule 702. Your argument might run something like this: “Your Honor, may I respond?” [judge nods] “Opposing counsel has alleged that there are difficulties with the methods used by the witness, and he’s free to explore that on cross examination. But the requirements of foundation don’t state that there must be absolutely no way to dispute an expert’s methods or facts: they state that those facts must be sufficient and the methods reliable. The witness has explained that in his expert opinion, his conclusions fulfill all of the criteria laid out by 702. The foundation for those conclusions has therefore been laid.” This is very closely related to the weight versus admissibility argument discussed previously, and putting it in those terms is also a powerful option.
Of course, there is always the danger that opposing counsel might get it right: they might correctly connect the facts to the law, arguing that a particular action taken by your witness means his methods were unreliable, or that a fact he lacked means his facts weren’t sufficient. Your job is again to attack the connection between the facts and the law that opposing counsel has created. How you do that will be very context-dependent in this type of argument: you’re going to have to respond to whatever problem opposing counsel is asserting exists. I’d generally recommend a two-pronged approach: attack the problem and draw on your witness’s credibility. You can usually attack a problem with an expert’s testimony by trying to minimize the problem, arguing that it doesn’t rise to the level of a problem with the reliability of the method or sufficiency of facts. You should then be relying heavily on your witness’s expertise, making the point to the judge that the guy with the degree, the guy (hopefully) with the backing of his scientific or professional community, thinks these methods were reliable and these facts sufficient. Ultimately this isn’t a response I can explain how to make in detail in the abstract. Ask your coach for help developing a detailed response if you’re worried enough about this happening.
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