Annie Dike, Esq. | Bullseye | June 7, 2016
“I just do.”
You see that line often in action movies. The slick-witted, irritatingly lucky action star tells his nervous sidekick, “We can’t get out this way if the bomb goes off.” The sidekick asks Bruce how he knows that and Bruce says “I just do.” How? Experience, that’s how. Is that enough to make Bruce an expert on the matter? According to a recent opinion from the Northern District of New York, it is.
Assume you’re handling a securities fraud case where it is alleged that your fiduciaries
As the Northern District of New York put it: “Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony,” citing the Advisory Committee Notes to Rule 702. While the opposition whined about Mr. Designation’s failure to cite a “single document, rule, code, manual, text,” etc. supporting his opinion concerning the industry standard, the court rightfully stated he doesn’t have to. If the expert has sufficient experience with it, that alone can stand as support for his opinion.
Meaning, no matter how hard the nervous sidekick pushes Bruce to quote a “document, rule, or code” proving his bomb exit theory, Bruce doesn’t have to give him anything. If he is sufficiently experienced in the physics of explosions (aren’t all action heroes?), he can simply say: “I just do.” Isn’t that the expert you want taking the stand for you anyway? Someone who knows from experience and has the scars to prove it? Not someone with a clipboard, waving a rule book, but, rather, a professional who can say: “I know because I’ve been there. I’ve been doing this for years and I know how to do it right, because I’ve seen it done wrong and had it blow up in my face.” That’s an expert the jury is likely to listen to.
Have you had success with an expert whose experience is entirely on-the-job training, as opposed to rule books or codes?