It is not necessary that you be a testifying expert well credentialed in a particular subject matter or a marquee consultant known across the land for your brilliance. However, you should have at least a passing knowledge of the landmark court case, Daubert (versus Merrill Dow Pharmaceuticals Inc.). Daubert is a United States Supreme Court case determining the standard for admitting expert testimony in certain courts.
For the uninitiated, Jason Daubert and Eric Schuller had been born with significant birth defects. They and their parents sued Merrill Dow Pharmaceuticals. In the proverbial nutshell, they claimed the drug Bendectin had caused the birth defects, and they produced numerous expert witnesses who testified to that fact. Their opinions were based upon animal studies, pharmaco-logical studies, and a reanalysis of other published studies, although these methodologies had not yet gained acceptance within the general scientific community. Merrill Dow introduced its own expert who reviewed volumes of published material, and his opinion was that the drug did not cause birth defects, and it was so ruled. The Ninth Circuit Court upheld the court decision that Merrill Dow’s drug was not the cause of the birth defects.
What came from the hearings and judgment was that for an expert’s testimony to be relied upon in a court of law, those opinions must be generally accepted within the relevant scientific community, have a known error rate, have been published and peer-reviewed, and be independent of the litigation subject to testimony.
However, if you look behind the green curtain, there are other and no less equal requirements of testimony (and report writing, for that matter). These requirements include that the opinions will help the trier of fact (a judge, jury, or your client) understand the evidence/ opinions or to determine a fact in issue. The opinion(s) must be based on sufficient facts or data (including a colleague’s data), it must be the product of reliable principles and methods, and that these principles and methods were reliably applied to the facts of the case or assignment.
Also behind the curtain are the opinions out of research conducted independent of the litigation or report writing, or developed expressly for the purpose of testifying or writing the report, if the opinion has been unjustifiably extrapolated from an accepted premise to an unfounded conclusion, and whether obvious alternative explanations were considered by the expert or author. And especially pertinent to our industry of arboriculture, whether the field of expertise claimed by the expert or report writer is known to reach reliable results for the type of opinion the expert or author is giving.
Always recall that the focus of your report writing, fact-finding, or testimony must be based not on the conclusions generated but rather the principles and methodology used to generate them.
Also please recall that I am not an attorney. I am not qualified to give legal advice. This article was written for educational purposes only and my apologies to the attorneys and other crafts qualified to do so.