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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write on when the expert’s facts are wrong:

An expert’s opinion is unreliable if his or her facts are wrong. As the Supreme Court explained, if “the foundational data underlying the opinion is unreliable, … any opinion drawn from that data is likewise unreliable.” Havner, 953 S.W.2d at 714. One variant of this argument is when the expert makes unwarranted assumptions. For example, the Seventh Circuit affirmed the exclusion of a “lost profits” expert on the basis that his assumptions about market penetration were “optimistic.” Target Market Pub., Inc. v. ADVO, Inc., 136 F.3d 1139, 1144 (7th Cir. 1998). Target Market is significant because the expert’s assumptions were similar to the defendant’s own projections of potential profits in its marketing plans. Id. The Seventh Circuit held that experts still needed to prove the assumptions behind such projections. See Id. at 1145 (“The [marketing] plan sought to demonstrate what Select Auto’s profits might be given certain assumptions that had not yet, and might never, come to pass.”).

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Advertising expert witness Paul Wright, is a principal of SignValue. This SignValue survey includes bad news for print media:

1) Contrary to previously published survey results, 24.7% of all respondents here indicated that their 2009 media expenditures will remain flat to potentially increase approximately 10% over 2008.

2) As a result of economic slowdown, 40% of respondents shifted dollars into e-mail marketing from print.

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In Good Data Drives Out Bad Cases, marketing expert witness and president of Applied Marketing Science, Inc, Robert L. Klein writes on the value of early data:

Sometimes even the results of a survey pre-test can be valuable. Pre-testing or pilot testing a survey is a standard research practice that often improves the survey by eliminating confusing wording or awkward question sequences. In addition, pre-testing can provide a rough indication of the likely results of a full-scale study. While the information that comes from pre-testing is not as precise as the results of a full-scale survey, the data can have an important impact on the strategy of the parties.

• In a case alleging trade dress infringement, the parties were attempting to negotiate a settlement while a pre-test of a survey was being conducted on behalf of the plaintiff. When the plaintiff’s representative in the negotiation introduced that very day’s pre-test results into the discussion, the defendant accepted the settlement offered.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The Admissibility of Expert Testimony in Texas after Daubert and Robinson. Rule 702 governs the admissibility of expert testimony in Texas: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. 1. The Robinson Opinion Created the Framework for Applying Rule 702. Robinson’s core holding is that Rule 702 requires the trial court to serve as a “gatekeeper” to ensure that (1) the expert is qualified and that the expert testimony is both (2) relevant and (3) reliable. Robinson, 923 S.W.2d at 553-54 & 556; see also Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (en banc) (holding that, in evaluating expert testimony in criminal cases, “the trial court’s first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results.”). According to Robinson, the relevancy requirement is critical because of the prejudicial effect that expert testimony has on the jury: “a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert.” Robinson, 923 S.W.2d at 553 (citations omitted). As to reliability, Robinson announced a “nonexclusive” six-factor test to evaluate expert testimony:

(1) the extent to which the theory has been or can be tested;

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In Negotiating and Settling Insurance Bad Faith Cases , insurance expert witness Guy O. Kornblum of GK Consultants, LLC, writes:

Thus, a bad faith claim has these three very separate and distinct components: A breach of contract is not bad faith – there must be an examination of the conduct of the company to determine if the manner of handling the claim was consistent with “good faith” principles. However, proof of bad faith is not enough to impose punitive damages – “something more” is required, which has been expressed as an “evilness” in the corporate scheme of things, or the “collective corporate conduct.”

The different standards and burdens applied must be evaluated. If not, they offer the defense an excellent opportunity to “compartmentalize” the case and defeat the plaintiff’s effort to obtain relief for the wrongs done in an amount sufficient to accomplish the goal of giving notice that such conduct should be stopped.

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Good Data Drives Out Bad Cases marketing expert witness and president of Applied Marketing Science, Inc., Robert L. Klein writes on the effective use of surveys in legal cases:

A survey can be a very effective way of helping a client see the true “beauty” of her case. For example, a survey showing that a patent infringement caused minimal lost sales can encourage a party to accept a smaller than hoped for settlement. A survey showing significant confusion due to packaging or trademark similarity, can motivate a defendant to negotiate rather than fight on. A survey establishing that marketplace realities bear little resemblance to the allegations can persuade a plaintiff to drop the case. When both sides are able to look at the same information and consider how that information will impact a judge or jury, cases settle. Armed with valid and reliable survey data, attorneys are better able to assess the merits of their case and advise their clients as to the best way to proceed.

Some attorneys may resist commissioning a survey for fear that the results will not be supportive of their client’s case. Surveys are not cheap, and sometimes the attorney’s instincts will be correct. But if a survey is going to expose the weakness of one side’s case, the other side should reasonably be expected to conduct the same survey and see the same result. The first side to know the truth can set the agenda for how the suit proceeds.

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Samuel McCargo faced cross-examination Friday in the final session of his trial on charges of professional misconduct while representing former Detroit Mayor Kwame Kilpatrick in the text message scandal. McCargo’s lawyers want to use Thomas Cranmer, a Detroit criminal defense lawyer, as a legal malpractice expert witness to counter the allegations that McCargo crossed ethical boundaries while representing Kilpatrick and working out the $8.4-million settlement in the 2007 police whistle-blower trial.

McCargo, who could lose his law license, is accused of covering up perjury and other misconduct, hiding evidence and lying to investigators about his actions after text messages surfaced showing Kilpatrick and his top aide Christine Beatty lied under oath.

Excerpted from www.freep.com.

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In Expert Witnesses and Reports, Manuel Lopez and David Chaumette of Shook, Hardy & Bacon L.L.P. write:

The practical effect of Robinson in Texas has been an increase in the scrutiny of expert testimony. Even popular media coverage has identified the 1993 Daubert decision as a severe restriction on expert testimony. See, e.g., Laura Parker, Yates Trial Highlights Power of an Expert Witness, USA TODAY,June 20, 2006 (quoting a well-respected defense lawyer as saying “[b]efore the (1993) decision, I was seeing the most outlandish testimony. People with no credentials offered conclusions without explaining themselves ….”). Ironically, the Supreme Court intended Daubert to represent a less restrictive test for the admissibility of expert testimony than the prior “general acceptance” test used in federal courts. Daubert, 509 U.S. at 588 (“a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to ‘opinion’ testimony.”) (citations omitted). Nevertheless, in Texas, courts have taken seriously their gatekeeper function under Robinson.