That Is Not All There Is: Enhancing \u3ci\u3eDaubert\u3c/i\u3e Exclusion by Applying Ordinary Witness Principles to Experts

I. Introduction II. Expert Testimony in Context ... A. Types of Disputes Between Experts ... 1. Mixed Issues of Law and Fact ... 2. Disputes About Historical Fact ... a. Recognizing Pure Disputes of Historical Fact ... b. Presence of Pure Disputes of Historical Fact in Trials ... c. Incorrect Expert Testimony on Pure Historical Fact Issues .. i. Varying Difficulty of Identifying Incorrect Expert Testimony ... ii. Jurors\u27 Need for Information About the Crafting of Expert Testimony .. B. Similar Disputes Between Fact Witnesses .. III. Ordinary Rules Applicable to Disputes Between Witnesses ... A. Information Provided to Jurors About Fact Witnesses 1. Information About Problems with a Fact Witness\u27s Observations ... 2. Information About a Fact Witness\u27s Relationships ... a. Relationships Between a Fact Witness and a Party ... b. Relationships Between a Fact Witness and an Attorney ... c. Bribes or Other Favors Bestowed Upon a Fact Witness ... 3. Changes in a Fact Witness\u27s Statements ... 4. Testimony From (Almost) All Fact Witnesses, Regardless of Loyalty ... B. The Mechanism for Providing Damaging Fact Witness Information to Jurors ... 1. Cross-Examination ... 2. Pre-Trial Information Gathering Is the Key to Effective Cross-Examination ... a. Disclosure ... b. Discovery ... c. Self-Help Information Gathering IV. Comparing Fact Witnesses to Experts ... A. Differences in How Fact and Expert Witness Testimony Is Developed ... 1. Development of Fact Witness Testimony ... a. Direct Observation ... b. Attorney Finding and Coaching of Fact Witnesses ... 2. Development of Expert Testimony ...1 a. Methods Used by Attorneys to Mold Expert Testimony ... i. Attorney Selection of Possible Expert Witnesses ... ii. Attorney Employment of Expert ... iii. Attorney Control Over the Flow of Information to the Expert ... iv. Attorney Direction of the Expert\u27s Analysis and Testimony ... v. Attorney Designation of the Expert as a Witness ... b. Variance Among Attorneys Regarding Molding of Expert Testimony ... B. Should Attorneys\u27 Greater Potential Influence on Expert Testimony Result in Jurors Receiving Less or More Information From and About Experts than Fact Witnesses? 1. The Wrong (but All Too Common) Answer: Jurors Receive Less Information From and About Expert Witnesses and Retaining Attorneys\u27 Influences on Their Testimony … 2. The Correct Answer: Jurors Should Receive at Least as Much Information From and About Expert Witnesses and Retaining Attorneys\u27 Influences on Their Testimony ... V. The Solution: Applying Ordinary Witness Rules to Expert Witnesses ... A. Information that Should Be, but Sometimes Is Not, Provided to Jurors to Help Them Resolve Disputes Between Expert Witnesses ... 1. Information About Problems with an Expert\u27s O pinions ... ... 2. Information About the Expert\u27s Relationships with a Party or Attorney ... 3. Changes in an Expert\u27s Statements ... 4. Testimony From (Almost) All Disclosed Expert Witnesses ... B. Treating Experts Like Fact Witnesses: The Nuts and Bolts ... 1. Ordinary Witness Rules that Are Readily Applicable to Experts ... 2. A Thornier Matter: The Anti-Quarantine Rule ... VI. Advantages ... A. Providing Jurors with Information to Assist Their Evaluation of Expert Testimony ... B. Establishing Clear Rules ... C. Introducing Additional Risk into Expert-Attorney Relationships VII. Conclusio