When a Daubert Challenge is made, data shows that it is
successful nearly half of the time.
The best strategy is to minimize the potential that a
challenge will be filed.
JOE EPPS, CPA/CFF/ABV, CFE, CVA, PRESIDENT
EPPS FORENSIC CONSULTING PLLC
Please call or email me directly with your questions regarding this
article or to discuss your financial expert witness needs.
How to Minimize the Potential
for a Daubert Challenge
To set the stage, consider the following data provided by Price Waterhouse
Coopers (PWC) from a national study
they conduct each year:
number of challenges for all experts:
n 253 in 2000; 913 in 2013 (360%
expert witnesses excluded:
n Exclusions in 2013....................... 48%
n Average exclusions 2000-13 ......46%
reasons for exclusions:
n Lack of Reliability......................... 45%
n Lack of Relevance......................... 18%
n;Qualifications;Only ...................... 10%
n Reliability & Relevance .............. 15%
n Reliability, Relevance and
This data shows that, when a Daubert
Challenge is made, it is successful almost one-half of the time. This means
that the best strategy is to minimize the
When working with an expert, it is
important for attorneys to extract the
greatest value from any expert on any
case. Expert witnesses are advised to
consider the following practices in
order to minimize the potential that
to be successful.
n Make sure all activities support the
m Examples included cases where
the expert provided contradictory
opinions in their deposition and
the work they were said to have
n Build a foundation for opinions
m Ultimately an opinion which is
not built on a solid foundation
is simply speculation. And, the
the legal framework of the case.
n Base the opinion on the most
m Follow the evidence; do not try
opinion the client wants.
n Minimize assumptions and estimates;
provide a basis for assumptions and
m Assumptions and estimates are
required in almost every case.
This is because evidence is often
incomplete. The expert should do
whatever they can to support the
reasons for the need for assumptions and estimates and why the
assumptions and estimates made
m When an expert is involved early
in the discovery process, the
expert is able to assist counsel in
from discovery in four key areas:
drafting a request for production;
outlining interrogatory questions;
providing deposition questions;
and assisting in research.
n Meet all report requirements
m The Federal Rules of Evidence in
what is expected for an expert
witness to include in their report.
Every expert and every attorney
should have a checklist of the
Federal requirements to assure
that all requirements are met.
so the expert should work with
Counsel to make sure local rules
n Know how the expert testimony will
assist the trier of fact
m Every opinion issued should have
the trier of fact in arriving at a
Expert Witness Excluded!
Having an expert witness excluded
can be a disaster for the attorney and
for the expert. This is a situation where
the attorney and expert must work as
The time for the attorney to challenge their own expert is before the
report is issued. This is also the time
when the attorney can work with the
expert to make sure the report provides the most clear and supportable