Experts Face Fewer Challenges in Court, Survey Says
witnesses play a big role in most - if not all - of the court cases that get reported here on RF Cafe.
is a law firm specializing in expert witnesses. Every month or so they send me an article about specific court cases
that could be of interest to my visitors. This particular installment is titled, "Experts
Face Fewer Challenges in Court, Survey Says" and reports that after a decade of increases, in the year 2011
a large drop in the numbers of court challenges to expert witnesses' testimony has been observed. Surprisingly,
nearly half of the experts' opinions were successfully challenged. The leading reason for dismissing expert testimony:
lack of reliability. Who would've guessed that a person getting paid to advocate a point of view might not be the
most credible client. - Kirt B.
Reprinted with permission.
Face Fewer Challenges in Court, Survey Says
Robert Ambrogi, Contributing Author
Bob Ambrogi is the only person to hold the top editorial positions at both the National Law Journal and
Lawyers Weekly USA. In addition, he formerly served as director of the Litigation Services division at American
Lawyer Media. He is an experienced attorney, ADR professional, writer and legal technologist.
How often is expert testimony challenged in court? What types of experts are most likely to be challenged? How
successful are those challenges? Do judges’ rulings on experts hold up on appeal?
The answers to these and
other questions are presented in a fascinating study that surveyed thousands of challenges to expert witnesses over
an 11-year period in state and federal courts. Conducted by PriceWaterhouseCoopers LLP, the study focused on cases
involving financial experts, but also drew broader conclusions applicable to experts of all types.
the years 2000-2011, the span of the study begins the year after the Supreme Court decided Kumho Tire Co. v. Carmichael,
the 1999 decision in which the court extended its 1993 opinion in Daubert v. Merrell Dow Pharmaceuticals Inc. to
all types of expert testimony. While the survey found a total of 6,919 challenges to experts, it considered only
the 5,360 cases that expressly referenced Kumho Tire.
Not surprisingly, the survey found a steady annual
increase in the number of challenges to experts, from 253 in 2000 to 879 in 2010. What was surprising, however,
is that 2011 brought a drop in the number of challenges, down to 778 for the year. Of those, 335 were successful
in excluding expert testimony in whole or in part.
Overall from 2000-2011, 45 percent of expert challenges
were successful in excluding testimony in whole or in part. Half the challenges failed to exclude any testimony.
In 4 percent of the cases, judges made no decision either way. The percentage of successful challenges remained
relatively consistent throughout the period of the survey.
Large Drop in Challenging Financial Experts
With regard to financial experts, the study found an even greater drop in the number of challenges. Whereas
challenges to financial experts rose steadily from 2001-2009, the number of challenges fell by 40 percent during
2010 and 2011. Even though the number of challenges fell, the rate of their success went up, with 54 percent of
challenges in 2011 succeeding in whole or in part.
Challenges to financial experts fared differently in different
courts, the survey found. Within the federal court system, challenges to financial experts were most likely to be
raised in the Second, Fifth and Sixth Circuits. Those three circuits accounted for 40 percent of all challenges
to financial experts. The Second Circuit alone accounted for 15 percent.
While those circuits heard the greatest
number of challenges, the circuits where challenges were most likely to succeed were the Eleventh and Tenth, with
success rates of 63 percent and 62 percent, respectively. The circuits where challenges were least likely to succeed
were the Third and First, with success rates of 34 percent and 38 percent, respectively.
Not all financial
experts are equal in their susceptibility to challenge, the survey found. Economists and accountants are the most
frequently challenged types of financial experts, each representing 24 percent of all challenges to financial experts.
The largest percentage of successful challenges involved those that targeted appraisers, with 51 percent of those
challenges succeeding in whole or part from 2000-2011. In addition to looking at how often challenges succeeded,
it analyzed why they succeeded.
Leading Reasons for Excluding Experts
reason judges excluded experts was reliability. This was true for every year covered by the survey. Of the 561 challenges
that resulted in full or partial exclusion of financial expert testimony, lack of reliability was a cause in 380
instances, or 68 percent of the cases. In just 2011, lack of reliability was a cause in 76 percent of the cases.
“When a financial expert is excluded for lack of reliability, it’s most frequently caused by a lack of valid
data,” the survey concluded. “Particularly, there is more often a problem with the quality of the data … available
to the financial expert or how the data is reflected in the analytical framework of the financial expert rather
than the misuse of an otherwise acceptable methodology.”
Two other leading reasons for the exclusion of financial
expert testimony were lack of relevance (38 percent of cases) and lack of qualifications (19 percent of cases).
Of course, courts sometime cite multiple reasons for excluding expert testimony. Of the cases examined for this
survey, 28 percent of exclusions were based on multiple criteria.
Most Rulings Affirmed on Appeal
A judge’s decision to exclude expert testimony is not always the end of the story, of course. When a judge’s
Daubert decision is reviewed on appeal, how is it likely to fare?
For 2011 only, the study looked at federal
and state appellate court rulings on Daubert issues. It found 68 challenges to experts. Of those, the lower court
had excluded the testimony of 37 experts, accepted the testimony of 29 experts, and not considered the Daubert criteria
for two experts.
With respect to all but 10 of the experts, the appellate courts affirmed the lower courts.
For those 10 experts, the appellate courts overturned the lower courts’ rulings. Six of the cases involved financial
experts, of which two were overturned.
Of the 10 cases where the lower court ruling was overturned, the appellate
courts allowed four experts to testify at trial, excluded the testimony of one expert, and remanded the case to
the trial court to apply or reapply the Daubert standards for five experts.
The full study,
Daubert Challenges to Financial Experts, is available from PriceWaterhouseCoopers.
Ambrogi, Contributing Author – who has written
27 posts on
Bob Ambrogi is the only
person to hold the top editorial positions at both the National Law Journal and Lawyers Weekly USA. In addition,
he formerly served as director of the Litigation Services division at American Lawyer Media. He is an experienced
attorney, ADR professional, writer and legal technologist.
This article was originally published
in BullsEye, a newsletter
distributed by IMS ExpertServices™. IMS Expert
Services is the premier expert witness search firm
in the legal industry, focused exclusively on providing custom expert witness searches to attorneys. To read this
and other legal industry BullsEye
publications, please visit IMS Expert Services' recent articles. For your next expert witness search, call us at
877-838-8464 or visit our website.