Page 20 - Family Law Services

In the Daubert decision, the Supreme Court determined that district court judges have the responsibility
to serve as "gatekeepers" by deciding whether an expert presenting testimony has used a methodology
that is reliable. If applicable, the Daubert challenge can be used by the opposing attorneys to disqualify
an expert’s testimony as unreliable and, therefore, not admissible. The Daubert decision provides four
factors that a judge may use when making his or her decision:

1. The theory or technique can be or has been tested.

2. The theory has been subjected to peer review or has been published.

3. There is an acceptable known or potential error rate of the technique or theory.

4. The theory has gained widespread acceptance within a relevant scientific community.

In recent years, Daubert challenges have become more frequent as attorneys and experts have become
familiar with the case law in which it has been used. Before testifying in any proceeding, a CPA expert
may wish to become familiar with FRE Rule 702 and the various factors outlined in Daubert and related
decisions in order to determine whether those factors may apply to the case at hand. If the Daubert case
law is not relevant in a particular jurisdiction, the CPA expert should become familiar with the rules and
case law on this issue that do apply.

Direct Examination

Planning and preparing testimony with the assistance of counsel is appropriate to ensure that the proper
evidence is included in the record. When preparing for direct examination, the expert has the opportuni-
ty to plan and practice his or her testimony with the attorney, whose objective is to present the expert in
the best light possible. Before testifying, the CPA generally should review the facts and theories in the
case and the proposed questions and anticipated answers. He or she should be prepared to respond to all
the anticipated issues in the case. The CPA expert may discover weaknesses in his or her testimony.
These should be discussed with the attorney during trial preparation because addressing such issues dur-
ing direct examination can mitigate potential damage to the case. If requested, the CPA may provide the
attorney with a list of pertinent questions to be considered during direct examination and the anticipated
answers to those questions. Alternatively, some attorneys will supply the CPA with their own direct ex-
amination questions. If the attorney has confidence in the expert’s ability, preparation for trial may be
minimal.

Normally, attorneys may follow a sequence during direct examination of expert testimony that covers
the

• expert’s qualifications;

• scope of the assignment;

• expert’s work and analysis, including the documents reviewed;

• methods used in arriving at the expert’s conclusions; and

• expert’s opinion and basis for opinion.

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