NPPE Expert Witness and Dispute Resolution 5 — Questions and Answers
Question 1: An engineer is asked by two competing parties in a dispute to serve as a neutral expert for the same project. The engineer should:
- Accept if both parties provide written consent and the engineer can remain impartial (Correct answer)
- Accept only if the retaining fees are equal from both parties
- Decline because serving both parties is inherently a conflict of interest
- Accept and disclose the arrangement only to the court
Correct answer: Accept if both parties provide written consent and the engineer can remain impartial
A neutral expert serving both parties can be appropriate if both provide informed written consent and the engineer is confident in their ability to remain impartial.
Question 2: During a deposition, the opposing attorney uses a 'learned treatise' to challenge an expert's opinion. Under Federal Rule of Evidence 803(18), the treatise can be used to:
- Be admitted as a full exhibit for the jury to read independently
- Be read into evidence if the expert acknowledges or it is established as a reliable authority (Correct answer)
- Be excluded unless the expert personally authored it
- Only impeach credibility, never to establish substantive facts
Correct answer: Be read into evidence if the expert acknowledges or it is established as a reliable authority
FRE 803(18) permits statements from learned treatises to be read into evidence—but not admitted as exhibits—once the authority is established as reliable.
Question 3: An engineer expert witness's compensation arrangement that would most undermine their credibility and potentially violate ethical rules is:
- A flat hourly rate for all services including trial testimony
- A contingency fee tied to the outcome of the litigation (Correct answer)
- Reimbursement for travel and lodging expenses
- A higher rate for deposition testimony than document review
Correct answer: A contingency fee tied to the outcome of the litigation
Contingency fee arrangements for expert witnesses are prohibited under most professional codes and court rules because they compromise objectivity.
Question 4: In a Daubert hearing in US federal court, the judge is evaluating the admissibility of an engineer's expert testimony. The primary purpose of this hearing is to:
- Determine whether the expert is licensed in the relevant jurisdiction
- Assess whether the expert's methodology is scientifically valid and reliably applied (Correct answer)
- Establish the expert's fee arrangement with the retaining party
- Review whether the expert's report was filed within the scheduling order deadline
Correct answer: Assess whether the expert's methodology is scientifically valid and reliably applied
A Daubert hearing is a gatekeeping proceeding where the judge evaluates whether the expert's methodology is scientifically sound and properly applied to the facts.
Question 5: A dispute resolution clause in a construction contract requires 'stepped' dispute resolution. The correct sequence typically is:
- Litigation → Arbitration → Mediation → Negotiation
- Negotiation → Mediation → Arbitration → Litigation (Correct answer)
- Arbitration → Mediation → Negotiation → Litigation
- Mediation → Negotiation → Litigation → Arbitration
Correct answer: Negotiation → Mediation → Arbitration → Litigation
Stepped dispute resolution escalates from direct negotiation to mediation to arbitration to litigation, exhausting less adversarial options first.
Question 6: When preparing for a jury trial, an expert witness should present complex engineering concepts by:
- Using technical jargon to demonstrate expertise and credibility
- Simplifying explanations with analogies and visual aids accessible to non-engineers (Correct answer)
- Relying on the attorney's opening statement to explain technical issues
- Limiting testimony to conclusions without underlying reasoning to avoid confusion
Correct answer: Simplifying explanations with analogies and visual aids accessible to non-engineers
Effective expert testimony for a jury requires translating technical material into clear, accessible language supported by visual aids and relatable analogies.
Question 7: Under the work-product doctrine, which materials prepared by an expert witness are generally protected from discovery in US litigation?
- The expert's final written report submitted to the court
- Draft reports and communications between the expert and retaining counsel reflecting counsel's mental impressions (Correct answer)
- Data and documents the expert relied upon to form opinions
- The expert's CV and list of prior testimony
Correct answer: Draft reports and communications between the expert and retaining counsel reflecting counsel's mental impressions
Under FRCP 26(b)(4), draft expert reports and attorney-expert communications reflecting counsel's legal strategy are generally protected as work product.
NPPE Expert Witness and Dispute Resolution 5
An engineer is asked by two competing parties in a dispute to serve as a neutral expert for the same project.
The engineer should: