CFC Courtroom Presentation & Testimony 4 — Questions and Answers
Question 1: A forensic expert who receives a subpoena duces tecum for all notes and working papers must:
- Destroy notes that might be harmful to the case before complying
- Produce all responsive documents, including draft reports and scratch notes (Correct answer)
- Produce only the final signed report
- Consult only with the retaining attorney and ignore the subpoena
Correct answer: Produce all responsive documents, including draft reports and scratch notes
A subpoena duces tecum requires production of all responsive materials; destroying documents after receipt constitutes spoliation.
Question 2: During redirect examination, the purpose is to:
- Introduce entirely new topics not covered in cross-examination
- Rehabilitate the expert witness's credibility and clarify testimony challenged on cross (Correct answer)
- Allow opposing counsel to re-examine the witness
- Present the expert's curriculum vitae to the jury
Correct answer: Rehabilitate the expert witness's credibility and clarify testimony challenged on cross
Redirect examination gives the sponsoring attorney the opportunity to address damage done to the expert's credibility during cross-examination.
Question 3: In a bench trial (no jury), the forensic consultant should adjust their testimony by:
- Avoiding all technical language since the judge will be confused
- Using slightly more technical language since the judge has legal training (Correct answer)
- Refusing to testify without a jury present
- Delivering testimony exactly as if a jury were present
Correct answer: Using slightly more technical language since the judge has legal training
Judges have legal training and can process more technical information than lay jurors, allowing for slightly more sophisticated presentations.
Question 4: A Frye hearing (general acceptance test) most often arises in which context?
- Federal courts applying Daubert
- State courts in jurisdictions that have not adopted the Daubert standard (Correct answer)
- Administrative proceedings before regulatory agencies
- International arbitration panels
Correct answer: State courts in jurisdictions that have not adopted the Daubert standard
Many states still use the Frye standard, requiring that a scientific technique be 'generally accepted' in the relevant scientific community.
Question 5: When the opposing attorney employs the 'looping' cross-examination technique, they are:
- Repeating the same question in different forms to obtain a more favorable answer
- Incorporating the expert's prior answer into the next question to box in the witness (Correct answer)
- Asking the expert to read from their own report repeatedly
- Objecting continuously to disrupt the expert's train of thought
Correct answer: Incorporating the expert's prior answer into the next question to box in the witness
Looping uses the expert's own answer as the premise of the next question, progressively narrowing the expert's ability to qualify responses.
Question 6: Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure requires that an expert's written report include:
- Only the expert's final opinions and their basis
- A complete statement of all opinions and reasons, data considered, exhibits, qualifications, prior testimony, and compensation (Correct answer)
- A summary of the case facts as provided by retaining counsel
- Only the methodology used, with opinions reserved for trial
Correct answer: A complete statement of all opinions and reasons, data considered, exhibits, qualifications, prior testimony, and compensation
FRCP 26(a)(2)(B) requires a comprehensive expert report covering opinions, basis, supporting data, exhibits, qualifications, prior testimony list, and compensation.
Question 7: A forensic consultant should avoid 'advocacy creep,' which is defined as:
- Gradually assuming the role of an advocate for the retaining party rather than an objective expert (Correct answer)
- Moving slowly across the courtroom during testimony
- Gradually increasing fee rates throughout a litigation engagement
- Expanding the scope of work beyond the original retainer agreement
Correct answer: Gradually assuming the role of an advocate for the retaining party rather than an objective expert
Advocacy creep occurs when an expert unconsciously begins to champion the client's position rather than maintaining objective analysis.
CFC Courtroom Presentation & Testimony 4
A forensic expert who receives a subpoena duces tecum for all notes and working papers must: