Litigation Support & Expert Witnessing Flashcards

Under the 2023 amendment to Federal Rule of Evidence 702, what standard must the proponent meet to show that expert testimony is admissible?

Answer: Preponderance of the evidence

The 2023 amendment clarified that the proponent must show it is more likely than not that the Rule 702 requirements are met.

Which U.S. Supreme Court case extended the Daubert gatekeeping function to non-scientific expert testimony, such as accounting testimony?

Answer: Kumho Tire Co. v. Carmichael

Kumho Tire (1999) held that the trial judge's gatekeeping duty applies to all expert testimony, including technical and other specialized knowledge.

In General Electric Co. v. Joiner, what standard did the Supreme Court set for an appellate court reviewing a trial court's decision to admit or exclude expert testimony?

Answer: Abuse of discretion

Joiner held that appellate courts review Daubert rulings for abuse of discretion.

Under FRCP 26(b)(4)(C), which communication between an attorney and a retained testifying expert is generally discoverable?

Answer: Communications about the expert's compensation for the study or testimony

Rule 26(b)(4)(C) protects attorney-expert communications except those about compensation, facts or data the attorney provided, and assumptions the attorney supplied.

A forensic accountant is retained only as a consulting expert and will not testify. When can the opposing party usually obtain discovery of that expert's opinions?

Answer: Only on a showing of exceptional circumstances

FRCP 26(b)(4)(D) allows discovery from a non-testifying consulting expert only in exceptional circumstances or as provided in Rule 35(b).

Absent a stipulation or court order, how long after the other party's expert disclosure does a party have to serve rebuttal expert disclosures under FRCP 26(a)(2)(D)(ii)?

Answer: 30 days

Rebuttal expert disclosures are due within 30 days after the other party's disclosure.

An expert's report omits a list of cases in which the expert testified at trial or deposition. How far back must that list go under FRCP 26(a)(2)(B)?

Answer: The previous 4 years

The report must list all other cases in which the witness testified as an expert at trial or by deposition during the previous 4 years.