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In complex litigation, expert witnesses often become the lens through which juries understand the case.

When technical issues are involved—medicine, engineering, finance, or scientific analysis—jurors depend on experts to translate complicated information into something they can evaluate and trust. An expert can clarify the facts, reinforce the theory of the case, and help the jury make sense of evidence that might otherwise feel overwhelming.

But the same witness who strengthens a case can al...

Beyond knowing the mechanics of the rules of evidence, effective advocates use the rules as weapons of persuasion. And like any legal doctrine, spotting the key issue is essential—even if it's not the most obvious. There's reference to an out-of-court statement? Many lawyers jump straight to a hearsay analysis. But with hearsay having so many exceptions, the most obvious objection may not be the most effective. What about relevance? What about foundation? 

Equally important is the ability to ad...

When it comes to evidentiary disputes, it can be tough to predict how a particular judge will rule. What is inadmissible character evidence (Rule 404(a)) to one judge might be admissible "other acts" evidence (Rule 404(b)) to another.

And when it comes to expert opinion testimony, there can be even more uncertainty. A judge considering a shaky opinion might—citing the Supreme Court's landmark ruling, Daubert v. Merrell Dow Pharmaceuticals, Inc.—exclude the opinion on the ground that it is fulfi...

"I know lots of people who say you're wrong!" 

"Really? Like who?" 

"Well, you know ... like ... lots of people."

The proverbial "they" as in, "You know what they say ..." Is among the laziest rejoinders in an argument. Instead of identifying problems of fact or logic, the person invents an imaginary consensus to suggest his or her opponent's position is nothing but a fringe outlier.

Certainly such a tactic has no place in the courtroom, right? After all, one of the main reasons to exclude...

Beyoncé. Lebron. Magic. With some celebrities and athletes, just their first name or nickname will do.

You never hear people say, "Cher? Cher who? What's her last name?"

The same goes for some appellate opinions. Take Miranda. Any cop movie invariably includes a scene where the cranky veteran chews out a younger officer for violating a suspect's Miranda rights. From Dirty Harry to 21 Jump Street, Miranda is as common in police movies as a car chase.

In the recent case of San Francisco Print M...

"I'll see you in court!" It's one of those lines that seems to make its way into any courtroom drama. But like a judge banging a gavel, some things make for good television but never actually happen in real life. 

This is not to say lawyers are immune from having their share of meaningless colloquialisms. Take "battle of the experts." Attorneys toss around this phrase to describe certain cases or trials as basic coin flips. That upcoming trial about an allegedly defective widget? Don't ask me. ...

When it comes to Father's Day, mothers have a distinct advantage. Why? Because Mother's Day is in May and Father's Day is in June. (To be clear, I have repeatedly told my daughters that Mother's Day is not Wife Day--it is their responsibility to make cards, get a gift, fix breakfast, etc., but I'm still needing to ... facilitate the day.) So whatever occurs on Mother's Day implicitly sets the tone for Father's Day. If Mother's Day is celebrated with a heartfelt text and Wendy's take-out, Dad sho...

With it being almost three years since People v. Sanchez, 63 Cal. 4th 665 (2016), most lawyers are at least familiar with its holding. Indeed, prior articles on this blog have summarized the case and explained how to question expert witnesses post-Sanchez. But with familiarity, certain details can be overlooked. Take Michael Jordan. The most casual fan has an instant memory of his storybook career with the Bulls, the multiple championships, even his brief retirement to give baseball a go. But pl...

"Like a house built on sand, the expert's opinion is no better than the facts upon which it is based." This famous line from Kennemur v. State of California, 133 Cal. App. 3d 907, 924 (1982), can be found in virtually every California motion to exclude an opponent's expert witness. And it is typically cited for one of two arguments:

There is the junk science argument. This argument seeks to show the expert's reasoning or methodology is unreliable. It is used against the expert who opines the pl...

"What documents did you review to prepare for your deposition?" It is among the most commonly asked questions at the outset of depositions. And yet, whether the answer is permissible or privileged turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory.

On the one hand, a lawyer's selection of documents for a client to review reflects that lawyer's opinion about what is or is not important. Indeed, since...

The California Supreme Court recently answered this question in People v. Sanchez, 63 Cal. 4th 665 (2016) as follows: No—not if the hearsay communicates case-specific facts. While an expert may assume the existence of case-specific facts to explain his or her opinion, the expert cannot relay such facts and treat them as true. Sanchez is important for trial lawyers because it restores the distinction between general background hearsay (which can be relayed to a jury) and case-specific hearsay (wh...

In People v. Sanchez, 63 Cal. 4th 665 (2016), the California Supreme Court decided that an expert witness cannot relay hearsay that communicates case-specific facts to the jury. This post examines how trial lawyers can and should examine expert witnesses in the post-Sanchez era. 

As a starting point, practitioners should master familiarity with Evidence Code section 801. Section 801 sets forth the allowable limits on which expert witnesses may offer opinions as well as the allowable bases for o...