Advocate Article on Challenging Experts

KH Founding Partner Kurt Kuhn contributed an article to an edition of the Texas State Bar Litigation Report, The Advocate, focused on motions practice. Kuhn wrote on challenging experts in Texas state courts. Testimony by an expert can play a pivotal role in the outcome of a case. As a federal judge noted, “[c]hallenging an expert and questioning his expertise is the lifeblood of our legal system.” With the importance that both judge and jury place on expert testimony, it is wise for counsel to spend extra time on experts. Unfortunately, as trial approaches, time is a scarce resource for a litigator. Kuhn’s article is based on the idea that an organized approach to reviewing expert testimony can help make sure that any extra effort is time well spent.

Kuhn, who has often been called to assist with challenging or defending an expert witness, sought to provide a general overview for counsel to follow when reviewing and challenging the proffered testimony of an expert in Texas state court. Kuhn’s article covers the rule for admission of experts in Texas, who has the burden for admission and challenges to experts, how to determine if an expert is qualified, is it expert testimony, does it meet the standards of reliability, and is it relevant. Kuhn writes about the telltale flaws that counsel should look for in reviewing whether logical gaps exist in proffered expert testimony, including the “because I said so” expert; “we don’t need no stinkin’ test,” and “my dog is immortal.”

Kuhn explains that, “Ironically, the decision to challenge admission of an expert is much more art than science. Multiple considerations go into the decision about whether, when, and how to do so. That said, a systematic approach by counsel to reviewing proffered expert opinions in each case can help make that decision easier.”