Livinglies's Weblog

While exclusion of expert witness testimony is expressly considered a drastic step, the court is under virtually no constraints as to the weight it gives to such testimony.

The bottom line is that hidden in the rules there are two types of expert witness testimony — fact and opinion. Fact testimony is generally given far more weight than opinion. And fact opinion is what gets the court to believe or allow for the possibility that the witness’s knowledge actually contributes something to the court proceedings. I believe that most conclusions from an expert are pretty much worthless.

But facts and factual conclusions based upon technical knowledge, technical standards and proof of application of clear standards goes much further than opinion evidence, which almost always transgresses upon the court’s right to make final conclusions of law and fact.

So the object is to establish specific issues that you have identified to be in issue, identify specific terms of art used in the marketplace by players in that market, and create a narrative that puts the definition of those terms in issue. That pretty much forces the judge to at least consider the testimony.

To set the foundation for all that I think you need to conduct discovery and then use the objections of the the opposition to highlight the fact that the definition of terms is in dispute.

See “The Daubert Expert Standard: A primer for Florida Judges and Lawyers.” Thomas S Edwards and Jennie R. Edwards. Florida Bar Journal, March/April 2020 Page 9.

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