Franchising Expert Witnesses & The Daubert Test

Franchise executive Don Sniegowski comments on the franchise case study by attorney Bruce Schaeffer in which Schaeffer concludes that one of the weakest links in franchisee court cases is often their own expert’s testimony.

In Challenges to the Admissibility of Expert Financial Testimony, attorney Bruce Schaeffer followed all federal and state cases involving the admissibility of expert financial testimony from 2005 through 2008. He discovered that challenges involving expert witnesses were successful some 57% of the time, meaning that only 43% of of proposed experts were allowed to testify. And, when expert testimony is successfully challenged, it almost always means the franchisee’s case will fail.

According to Schaeffer, the key point in a franchise dispute is to prove damages. For that, a franchisee needs an expert. But their proposed witness will never make it to the stand if he cannot get by the Daubert test, named after the U.S. Supreme Court case that determined that for expert testimony to be admissible, it must meet a minimum “threshold” level of credibility, namely:

1. The theory or technique can be tested 2. The expert’s work has been subjected to peer review 3. The rate of error is acceptable 4. The method utilized enjoys widespread acceptance
If franchisees are going to use an expert, which in most cases is a must, they had better have one that can pass the Daubert test. Chances are the weakest link in a franchisee’s case is that they cannot prove damages because their expert’s testimony does not pass the Daubert test. So the case will never go to jury and will be thrown out of court.

Posted in:

Comments are closed.