Attacking Class Experts' Methodology, Conclusions and Reports to Obtain or Defeat Certification

Description

Since Wal-Mart v. Dukes, many lower courts now require a rigorous expert analysis at the class certification stage to demonstrate that damages can be measured on a classwide basis. Expert witnesses generally opine on whether all class members have suffered injury, whether aggregate damages can be estimated with statistical accuracy, and other similar issues.

Effective cross-examination of the opposing party’s expert witnesses can influence whether a putative class action meets the Rule 23 prerequisites for certification. The goal of cross-examination is to expose flaws in the expert’s methodology, conclusions and draft reports in order to convince the judge to grant or deny certification.

Preparation is crucial when it comes to cross-examination. During expert deposition, counsel should focus on boxing in the expert regarding the opinions he or she plans to give during the certification hearing. Deposition testimony, expert reports, books or articles authored by the expert, and prior testimony in other cases are all sources of information that can be used to discredit or impeach an expert during cross-exam. Counsel must consider how to best leverage the information gained from these sources.

Listen as our authoritative panel discusses effective strategies for cross-examining experts in class action litigation. The panel will share techniques from their own experiences that have proven successful in discrediting expert witnesses in order to obtain or defeat class certification.