In last week’s BVR webinar “The Latest on Motions to Exclude Financial Experts: The Now-Routine Trial Tactic that Works,” Robert M. Lloyd (University of Tennessee College of Law) and Jonathan Dunitz (Friedman Gaythwaite Wolf & Leavitt) offered several suggestions for writing a report that will reduce your vulnerability to Daubert challenges.
“The first thing is to use the Daubert factors in your report,” said Professor Lloyd. Second, show your work. “I sound like a middle school teacher in an arithmetic or an algebra class, but it's really important to let the court know exactly what you did – all the steps, show what you did, explain the reasoning step by step in detail – and write it in a language that the judge can understand. Define and explain technical terms.”
“The other thing you need to remember is that ultimately, if the case is tried, you'll be speaking to jurors who will probably have even less understanding than the judge does, added Dunitz. “So it's really important to think in those terms and, from the very beginning in writing your report, to remember that you're ultimately going to have to explain this to complete novices and be able to explain it in a way that they will understand and accept as being accurate.”
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