your expert witness to answer three ultimate questions. Use this three
pattern question formula in most negligence cases.
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The ultimate liability questions:
question pattern for most cases involving experts.
Why not have your expert testify directly that the defendant was (or was not)
In most jurisdictions it is possible to cap an expert’s direct testimony the
opinion that the defendant was (or was not) negligent. That is because the Federal R. Evid., Rule 704 and like state rules
straightforward. Put the following quotations in your trial notebook.
“(a) Except [in criminal cases] ..., testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an
ultimate issue to be decided by the trier of fact.”
- Federal R. Evid., Rule 704
“The older cases often contained strictures against allowing witnesses to
express opinions upon ultimate issues, as a particular aspect of the rule
against opinions. The rule was unduly restrictive, difficult of application, and
generally served only to deprive the trier of fact of useful information. 7 Wigmore §§ 1920, 1921;
McCormick § 12. The basis usually assigned for the rule,
to prevent the witness from "usurping the province of the jury," is aptly
characterized as "empty rhetoric." 7 Wigmore § 1920, p. 17.”
- Official Notes to Federal R. Evid., Rule 704.
Expert opinion on the ultimate issue gives the jurors the arguments and
reasoning they can use in the jury room. E.g., if you are the defendant Dr.
Jones in a medical malpractice case, you surely like the expert to say that “Dr.
Jones was not negligent; he was only a general practitioner. Only a research
doctor would recognize this rare condition. It isn’t something the average
doctor would be able to recognize.”
So, if you want the power of the ultimate cap to the expert’s testimony, use
the following three questions pattern technique when preparing your expert
witness for deposition or trial. Either plaintiff or defendant
can utilize this technique. First, define ....
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