Practical Tips for the Use and Consideration of Expert Testimony in Arbitration – When May an Expert Witness be Helpful?
Margaret R. Brogan
March 16, 2010 Proceedings Database
Practical guidance in the use of expert testimony, including the “flexible” test for qualifying the validity of the scientific evidence of expert witnesses under Rule 702 (per Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Attorney Epstein concludes that the case law following Daubert and the amendment of Rule 702 in 2000 favors …
The utility of expert witnesses is explored by NAA members and attorneys for labor and management. Under prevailing state and federal rules, discretion is accorded the arbitrator as to the admission of expert testimony and, of course, the arbitrator has discretion on the weight to be accorded it.
An examination of the ethics of arbitrators advertising their services, including employment arbitration and mediation; of furnishing training to solely one party; and of serving as an expert witness. Amendment of the Code of Professional Responsibility in 1996, to permit the providing of accurate and objective information about an arbitrator, is also discussed.
Richard Block discusses whether and under what conditions arbitrators should agree to serve as expert witnesses.Walter Gershenfeld discusses when disclosure is required of an arbitrator, and when recusement is appropriate.And Alexander Porter addresses the issues arising when concerns about payment of the arbitrator arise.