CFC Legal Standards & Expert Witness Testimony 3 — Questions and Answers
Question 1: Under the Frye standard, expert scientific testimony is admissible if the methodology:
- Has been tested and peer-reviewed by at least three independent experts
- Is generally accepted in the relevant scientific community (Correct answer)
- Satisfies the four-factor Daubert reliability test
- Has a known error rate below five percent
Correct answer: Is generally accepted in the relevant scientific community
Frye v. United States (1923) established the 'general acceptance' test — the methodology must be accepted by the relevant scientific community.
Question 2: A forensic consultant discovers mid-engagement that initial assumptions used in a damages report were incorrect. The consultant's ethical obligation is to:
- Complete the report using original assumptions to avoid delay
- Notify retaining counsel and revise the report with corrected assumptions (Correct answer)
- Withdraw from the engagement immediately without explanation
- Submit the report and address corrections during deposition
Correct answer: Notify retaining counsel and revise the report with corrected assumptions
Professional ethics require correcting erroneous foundational assumptions and updating opinions before finalizing reports.
Question 3: Which evidentiary rule governs the admissibility of business records as an exception to the hearsay rule in federal court?
- FRE 801(d)(2)
- FRE 803(6) (Correct answer)
- FRE 901(b)(1)
- FRE 1002
Correct answer: FRE 803(6)
FRE 803(6) is the business records exception, allowing records kept in the regular course of business to be admitted despite hearsay concerns.
Question 4: An expert is asked to review a competitor's trade secrets as part of a litigation engagement. What ethical boundary is most critical?
- Using only publicly available information regardless of what counsel provides
- Ensuring confidential materials are used solely for litigation purposes and not competitively (Correct answer)
- Refusing all engagements involving trade secrets
- Disclosing all trade secret information reviewed to the opposing party
Correct answer: Ensuring confidential materials are used solely for litigation purposes and not competitively
Experts reviewing confidential materials are ethically bound to use them solely for the disclosed litigation purpose and not for competitive advantage.
Question 5: During voir dire, opposing counsel challenges an expert's qualifications. The expert's strongest response to establish competency is to:
- Reference the number of years they have worked
- Cite specific education, training, publications, and relevant case experience (Correct answer)
- State that they have been accepted as an expert in prior cases
- Defer to the judge to rule without elaborating
Correct answer: Cite specific education, training, publications, and relevant case experience
Demonstrating qualifications requires concrete specifics — education, training, publications, and directly relevant prior experience — not generalities.
Question 6: An expert who serves as both a consulting expert and a testifying expert in the same matter faces which primary risk?
- Higher compensation exposure
- Loss of work product protection for consulting work if roles are not clearly separated (Correct answer)
- Inability to testify about privileged communications
- Conflict of interest under all bar association ethics rules
Correct answer: Loss of work product protection for consulting work if roles are not clearly separated
Dual roles risk waiving work product protection because testifying expert materials are fully discoverable, unlike consulting expert communications.
Question 7: Kumho Tire Co. v. Carmichael (1999) expanded Daubert by holding that the trial court's gatekeeping obligation applies to:
- Only scientific expert testimony involving hard sciences
- All expert testimony, including technical and other specialized knowledge (Correct answer)
- Testimony from experts with doctoral degrees only
- Civil cases but not criminal proceedings
Correct answer: All expert testimony, including technical and other specialized knowledge
Kumho Tire extended Daubert's gatekeeping standard beyond hard sciences to all forms of expert testimony under FRE 702.
CFC Legal Standards & Expert Witness Testimony 3
Under the Frye standard, expert scientific testimony is admissible if the methodology: