Every trial lawyer has confronted or will confront an expert who relies on a survey or a party who seeks to get a survey into evidence. When a survey comes into play, you need a survey expert to testify about the defects in your opponent’s survey or to conduct a survey that will help prove your case.
Keeping in mind that there is no perfect survey and there is no survey that cannot be criticized, the following checklist will guide you through the issues to consider when deposing a survey expert or preparing a survey expert for deposition:
- Check out the expert’s past. Locate the survey expert’s prior sworn testimony, either about his or her own surveys or criticizing those of another expert. In the past, the expert might have criticized a flaw that his or her own survey contains, or a court might have criticized the expert for a survey error that the expert has repeated in the present survey. Many published decisions discuss the surveys advanced by the parties and identify their sponsoring experts.
- Get everything the expert used. Request everything the survey expert used or relied on conducting the survey, including completed respondent screening forms and questionnaires, survey instructions, survey coding guidelines, result breakdowns, and sampling error calculations.
- Look at the expert’s professional affiliations. Identify the professional organizations to which the survey expert belongs and determine the standards set by those organizations on conducting surveys.
- Consider who was surveyed. Determine whether the survey universe was proper, i.e., whether the survey’s universe fits the facts of the case.
- Check out the sample. Determine whether the survey expert interviewed a representative sample of the universe, i.e., a sample large enough to allow the expert to extrapolate his or her findings to the universe.
- Review the questions. Make sure the questions were framed in a clear, precise, and nonleading manner. A leading question suggests the answer, and just as judges protect parties and the judicial process from the effect of improperly framed questions, judges require that survey experts ask respondents fair and neutral questions.
- Make sure the survey was done right. Confirm that the survey was properly implemented, i.e., that the interviewers used sound procedures and lacked knowledge of the survey’s purpose, and the survey expert closely guided the data collection without becoming personally involved in the collection process.
- Check on results reporting. Determine whether the survey expert accurately reported the data and analyzed it in accordance with accepted statistical principles.
- Confirm survey objectivity. Make sure that the entire survey process was objective, i.e., that there was no bias (even subtle bias) in the expert’s design and implementation of the survey.
Once you have found the errors in your opponent’s survey, exploit them. Courts will consider any error when deciding whether to admit opinion evidence based on a survey. Present all the possible errors to the court as part of, e.g., a preliminary injunction, a motion in limine, or a bench trial. The court can then decide whether the errors are so great that the survey, and any opinion based on it, should be excluded from evidence. See Kumho Tire Co., Ltd. v Carmichael (1999) 526 US 137, 143 L Ed 2d 238, 119 S Ct 1167.
Think twice, however, before presenting all these errors to a jury. No matter how brilliant your cross-examination, you will lose a jury if you spend 30 minutes asking the expert about confidence levels and sampling errors. For the jury, select three or four common-sense defects to exploit.
On cross-examining expert witnesses generally, including specific discussions of survey experts and survey data, go to California Expert Witness Guide, chaps 4 and 6.
© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.