The Use of Experts — Selected Issues

By: Russell L. Munsch (Co-speaker)
Presented at the ABI Southwest Bankruptcy Conference
September 21-24, 2000

I. Introduction
The use of experts to assist in the resolution of disputes in the insolvency area is a topic capable of filling a treatise. Many of the issues related to the use of experts are similar in both the bankruptcy and nonbankruptcy arenas. Some issues, however, are relatively unique to the workout context. What follows is a discussion of selected issues which are important to a solid understanding of what an expert can and cannot provide in furtherance of a client's cause. As
will be noted below, in spite of a common predicate, the law governing the use of experts is unsettled on several key points, so the controlling law of your jurisdiction should be consulted before moving forward in every case.

II. Statutory Predicates for Expert Witness Testimony
The Federal Rules of Evidence are applicable to cases arising under Title 11 pursuant to Federal Rule of Bankruptcy Procedure 9017. Federal Rule of Evidence 702 sets forth the rule for the admissibility of testimony by an expert witness:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 702 provides a statutory exception to the restriction on opinion testimony applicable to lay persons set forth at Rule 701.1 Rule 104(a) provides that it is the court which shall determine the qualifications of an individual to be an expert witness in accordance with Rule 702. Such determinations are to be made by the court by a "preponderance of proof." See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). Review of a federal court's decisions regarding the admissibility of expert testimony is conducted utilizing an "abuse of discretion" standard. See General Elec. Co. v. Joiner, 118 S. Ct. 512 (1997).

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