- Argue for exclusion under Evid C §352. A good check on expert opinion is Evid C §352 and its grant of discretion to the court to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate an undue consumption of time or create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
- Claim it’s testimony an expert can’t give. Argue that it’s a subject matter on which expert testimony is not allowed. For example, Pen C §29 prohibits experts from testifying on diminished capacity in the guilt phase of a criminal trial. Or you may be able to argue that the testimony involved concerns a question of law; experts aren’t allowed to give legal conclusions.
- Avoid the conclusive effect. If you’ve discovered that the other side may assert that its expert’s testimony should be given conclusive effect, consider obtaining your own expert so that the opposing expert’s testimony won’t be unopposed and thus conclusive. In professional malpractice cases, uncontradicted expert evidence is conclusive proof of the prevailing standard of skill and learning in the locality. Allied Props. v John A. Blume & Assocs. (1972) 25 CA3d 848, 857 (architectural); Lysick v Walcom (1968) 258 CA2d 136, 156 (legal).
- Go after perjured testimony. You can move to strike a witness’s testimony, once given, under Evid C §§350 and 352 based on it being perjured. However, the more common remedy for perjured testimony is impeachment through cross-examination and the introduction of direct impeaching testimony or evidence.
For more on the requirements for expert opinion and how to effectively attack an expert’s testimony, turn to CEB’s California Expert Witness Guide, chap 5.
Other CEBblog™ posts you may find useful:
- Prepare Your Expert to Testify: A Checklist
- An Offer to Concede Your Expert’s Qualifications May Be a Trojan Horse
- What Makes an Expert an Expert?
© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.