DAUBERT - THE IMPACT ON ESTATE AND FIDUCIARY …€¦ · “Special Needs Trusts: A View from the...

DAUBERT - THE IMPACT ON ESTATE AND FIDUCIARYLITIGATION

STEVE M. KINGJudge

Probate Court Number OneTarrant County, Texas

MARY C. BURDETTECalloway, Norris, Burdette & Weber

Dallas, Texas

State Bar of Texas28 ANNUAL ADVANCED ESTATE PLANNING AND PROBATEth

COURSEJune 9-11, 2004

San Antonio

CHAPTER 15

Probate Court Number OneTarrant County, Texas

[email protected] M. King 817.212.7238Judge fax: 817.884.3178

Steve M. KingBiographical Information

PERSONALNative of Graham, Young County, Texas A 6th Generation Texan Married 29+ years to Julia Milford King, two children, Cassie and Mason

EDUCATIONBaylor University School of Law, Juris Doctor, 1976University of Texas, Austin, Texas, Bachelor of Arts (Government), "with honors", 1974

PROFESSIONAL CAREERPrivate Practice of Law - Fort Worth, Texas – 1977 - 1994Judge, Tarrant County Probate Court Number One, 1994 - PresentAssistant Presiding Judge, Statutory Probate Courts of Texas, 2001 - 2002Presiding Judge, Statutory Probate Courts of Texas, 2002 - 2005

PROFESSIONAL ACTIVITIESState Bar of Texas; Real Estate, Probate and Trust SectionJudicial SectionUniform Trust Code Revision CommitteeTexas Guardianship Manual Revision Committee

Fellow, Tarrant County and Texas Bar FoundationsLife Member, Baylor Law School Alumni AssociationTarrant County Bar Association, History & Archives CommitteeFounding Director, President, Tarrant County Probate Bar AssociationLife Member, National College of Probate JudgesSecretary-Treasurer, National College of Probate JudgesFaculty, Texas College of Probate JudgesTexas Supreme Court Judicial Committee for Information Technology

CURRENT CIVIC INVOLVEMENTChair, Buckner Foundation « Tarrant County Historical SocietyFort Worth Heritage Trails Task Force « Chair, Outriders of the Fort Worth HerdNorth Fort Worth Historical Society « Fort Worth Corral, Westerners InternationalDirector, Fort Belknap Archives « Director, Dispute Resolution Services, Inc.Deacon, Travis Avenue Baptist Church

PUBLICATIONS“AIDS, An Epidemic of Fear," Personnel Law 1987, Professional Management Seminars, Inc., Dallas, TX, 1987 The Tarrant County Courthouse: A Self-Guided Walking Tour, Tarrant County, 1995“Cement Mountain,” “Flag Springs,” “Salt Creek Prairie,” “The Turtle Hole,” The New Handbook of Texas,

Texas State Historical Association, Austin, TX, 1996"Actual Administration Including Accounting Practices," Guardianship Issues in Probate and Family Law

Courts, State Bar of Texas, Dallas, TX, 1996"Administration of a Guardianship," Guardianship Issues in Probate and Family Law Courts, State Bar of Texas,

Dallas, TX, 1998“The Role of the Ad Litem,” 1998 Advanced Probate and Estate Planning Course, State Bar of Texas, Austin,

TX“Inventories and Accountings,” 1999 Intermediate Estate Planning, Guardianship and Elder Law Conference,

University of Texas, Galveston, TX

“Tool Time” (Less Restrictive Alternatives to Guardianship), 2000 Wills and Probate Institute, SouthwesternLegal Foundation, Dallas, TX

“Survival Kit for the Ad Litem,” 2000 Advanced Probate and Estate Planning Course, State Bar of Texas, FortWorth, TX

“Primer: Ad Litems” 2nd Annual Intermediate Estate Planning, Guardianship and Elder Law Conference,University of Texas, Galveston, TX, 2000“The Pink Lady on the Bluff: History of the Tarrant County Courthouse,” Tarrant County Historical SocietyAnnual Meeting, Fort Worth, TX, 2001“Legislative Update,” Real Estate, Probate and Trust Law Section Luncheon, State Bar of Texas AnnualMeeting, Austin, TX, 2001“Mediation Training - Existing Probate Court Mediation Programs,” National College of Probate Judges, 2000Fall Conference, Indian Wells, CA “2001: A Probate Odyssey,” 3 Annual Intermediate Estate Planning, Guardianship and Elder Law Conference,rd

University of Texas, Galveston, TX, 2001“Ad Litems 2002: The Roles of Attorneys and Guardians Ad Litem,” Guardianships: An Elder And MentalHealth Perspective, State Bar of Texas, Austin, TX, 2002 “Experts in Probate – The Search for the Right Stuff,” 2002 Probate Litigation Seminar, Tarrant County ProbateBar Association, Fort Worth, TX “How Judges and their Spouses Relieve Tension - Hobbies of Successful Judges and Their Spouses”, NationalCollege of Probate Judges Fall 2002 Conference, Tucson, AZ“Less Restrictive Alternatives to Guardianship,” Issues in Psychiatric Services: Year 2002, Texas HospitalAssociation, San Antonio, TX “Special Needs Trusts: A View from the Bench,” Special Needs Trusts, Stetson University School of Law andTexas Wesleyan School of Law, Fort Worth, TX, 2003“National Survey of Probate Court Jurisdiction” National College of Probate Judges Spring Conference 2003,Galveston, TX“Jurisdiction: A View from the Probate Court,” Advanced Personal Injury Law Course, State Bar of Texas,

Dallas, TX, 2003“Ad Litems 2003: The Roles of Attorneys and Guardians Ad Litem,” 5 Annual Intermediate Estate Planning,th

Guardianship and Elder Law Conference, University of Texas, Galveston, TXPanelist, Symposium on the Future of the Connecticut Probate Courts, Connecticut Bar Association, New Haven,CT, 2003Contributing Writer, Centennial History of the Tarrant County Bar Association, 1904-2004, Magnolia MediaPublishing, Fort Worth, Texas, 2004“If My Court Had Unlimited Resources, Where I Would Spend it and Why,” National College of Probate JudgesSpring Conference 2004, Santa Fe, NM“Probate, Guardianship and Mental Illness Case Update,” Texas College of Probate Judges Annual Meeting1996, 1997, 1998, 1999, 2000, 2001, 2002

MARY C. BURDETTECalloway, Norris, Burdette & Weber

3811 Turtle Creek Boulevard, Suite 400Dallas, Texas 75219

Phone: 214-521-1520Fax: 214-521-2201

Email:[email protected]

BIOGRAPHICAL INFORMATION

AREAS OF PRACTICE

Probate, Estate and Trust law, including will, trust and fiduciary litigation; estate administration;guardianships; estate planning; estate taxation; wills and trusts.

EDUCATION

Bachelor of Science Degree in Accounting, summa cum laude, University of Texas at Dallas 1978.Juris Doctor Degree, cum laude, Southern Methodist University School of Law.

PROFESSIONAL HISTORY

Admitted to the State Bar of Texas by the Supreme Court of Texas, November 1982.

Associated with the law firm of Thompson & Knight, June 1982; Shareholder, December 1987.

Partner in the law firm of Calloway, Norris & Burdette, September 1994.

Board Certified Estate Planning and Probate Law - Texas Board of Legal Specialization.

Board Certified Tax Law - Texas Board of Legal Specialization.

Certified Public Accountant.

Chairperson, Probate, Estates & Trust Section, Dallas Bar Association 2003-2004.

Daubert - The Impact on Estate and Fiduciary Litigation Chapter 15

TABLE OF CONTENTSI. INTRODUCTION . .............................................................................................................................................. 1

II. DEVELOPMENT OF THE CURRENT STANDARDS FOR ADMISSION OF EXPERT TESTIMONY . 1A. Frye v. United States -- The "General Acceptance" Standard......................................................................... 1B. Adoption of the Rules of Evidence . ............................................................................................................... 1C. Daubert v. Merrell-Dow Pharmaceuticals -- Federal Rules of Evidence Supersede Frye . ........................... 1D. The Gatekeeper Role of the Trial Judge . ....................................................................................................... 2

III. THE TEXAS STANDARDS FOR CHALLENGING RELIABILITY OF EXPERT TESTIMONY . ......... 2A. The Texas Rules of Evidence . ....................................................................................................................... 2B. Texas Cases on Expert Testimony . .............................................................................................................. 3

1. Pre-Daubert Expert Tests . .................................................................................................................... 32. Adoption of Daubert Rationale ............................................................................................................. 43. Extension of Daubert/Robinson Criteria to All Expert Testimony . ....................................................... 4

a. Texas – ........................................................................................................................................... 4b. Nationally – .................................................................................................................................... 5

4. Additional Texas Cases following Robinson. ......................................................................................... 5

IV. GETTING A HANDLE ON GATEKEEPING: THE “EIGHT GATES” ..................................................... 8

V. A CONTINUUM OF EXPERTS ........................................................................................................................ 8A. When Experts are Required . ......................................................................................................................... 8B. When Experts are Helpful . ............................................................................................................................ 9C. When Experts are Neither Required nor Helpful ........................................................................................... 9

VI. THE CARD AND FEEDING OF EXPERTS. ................................................................................................. 10A. Guardianship/Capacity Issues. ...................................................................................................................... 10B. Qualification for the Specified Area . ........................................................................................................... 10C. Did I Really Say That? ................................................................................................................................. 11D. Start Off in First, Then Shift Gears .............................................................................................................. 11E. Once the Toothpaste is out of the Tube. ....................................................................................................... 11F. Give Your Expert the Tools to Do the Job .................................................................................................. 11G. Simplify, Simplify, Simplify ....................................................................................................................... 11H. Practice, Practice, Practice . ......................................................................................................................... 11

VII. WHEN AND HOW TO CHALLENGE/ATTACK AN EPERT . .................................................................. 11A. Timing . ........................................................................................................................................................ 11

1. Prior to Trial . ...................................................................................................................................... 122. At the Pre-Trial . .................................................................................................................................. 123. At the Motion in Limine . .................................................................................................................... 124. At Trial . .............................................................................................................................................. 125. Continually Educate the Jury . ............................................................................................................. 12

B. Is an Expert Even Necessary?....................................................................................................................... 12C. Is This Expert Qualified? - Shooting the Messenger . .................................................................................. 12D. Making a Daubert/Robinson Challenge - Attacking the Message ................................................................ 13E. Third Line of Defense: Limiting Instructions . ............................................................................................ 13F. Specific Areas of Qualification .................................................................................................................... 14

XIII. PRESERVING ERROR . .......................................................................................................................... 15A. Procedural Considerations . .......................................................................................................................... 15B. Practical Applications . ................................................................................................................................. 15

1. Make a Record . .................................................................................................................................... 152. Build Your Evidentiary Record . ......................................................................................................... 15

C. Standard of Review: Abuse of Discretion ................................................................................................... 16

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IX. EXPERT TESTIMONY AND THE PROBATE COURT ........................................................................... 16A. Decedent's Estates ........................................................................................................................................ 16

1. Will Contests – . ................................................................................................................................... 16a. Statutory Definition of Capacity . ................................................................................................. 16b. Proper Opinion Testimony is as to Elements of Capacity, Not Ultimate Issue ............................ 16c. Acceptance of Non-Expert Testimony Regarding Capacity . ...................................................... 17d. Non-Binding Nature of Testimony on Jury . ................................................................................ 17

2. Will Contests: Undue Influence - . ...................................................................................................... 17a. Elements of Proof ........................................................................................................................ 17b. Burden of Proof/Circumstantial Evidence ................................................................................... 17

3. Will Contests: Handwriting . ................................................................................................................ 18a. Lay Opinion Testimony Admissible ............................................................................................ 18b. Expert Testimony Acceptable . ..................................................................................................... 18

4. Will Contests: Revocation . ................................................................................................................. 18a. Methods of Revocation . ............................................................................................................... 18b. Intent to Revoke . ......................................................................................................................... 18

5. Fiduciary Duty? . .................................................................................................................................. 18B. Guardianships . ............................................................................................................................................. 18

1. Contractual Capacity to Retain . ........................................................................................................... 182. Selecting Medical Experts . ................................................................................................................. 183. Doctor's Letter ..................................................................................................................................... 184. Court-Ordered Medical Examination ................................................................................................... 185. Payment . ............................................................................................................................................. 196. Confidentiality of Mental Exam (The "Medical Miranda") . ............................................................... 19

C. Mental Commitments . ................................................................................................................................. 191. Elements for Civil Commitment . ........................................................................................................ 192. Expert Testimony Required . ............................................................................................................... 19

D. Legitimation and Heirship . .......................................................................................................................... 191. Heirship . ............................................................................................................................................. 192. Legitimization . ..................................................................................................................................... 19

a. Paternity v. Legitimization . ......................................................................................................... 19b. Creature of Statute . ..................................................................................................................... 19c. Liberally Construed ..................................................................................................................... 19d. Modern Trend . ............................................................................................................................ 20e. Exclusive Means . ........................................................................................................................ 20f. Evidentiary Standard ................................................................................................................... 20g. Expert Testimony or Not? . .......................................................................................................... 20

3. Cases . ................................................................................................................................................... 20E. Gender Determination . ................................................................................................................................ 21F. Administration Issues . ................................................................................................................................. 21G. Attorney's Fees Basic Premise . .................................................................................................................. 21

1. Entitlement to Attorney's Fees: Will Contest . ...................................................................................... 212. Entitlement to Attorney's Fees: Guardianship Contest . ........................................................................ 213. Sine Qua Non: Expert Testimony on Reasonableness . ....................................................................... 214. What is Reasonable? . .......................................................................................................................... 225. Sine Qua Non(2): Adequate Documentation . ..................................................................................... 226. Discovery Considerations Regarding Attorney's Fees – ....................................................................... 22

H. Commissions . .............................................................................................................................................. 22

X. A BIBLIOGRAPHICAL NOTE: . .................................................................................................................... 23

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DAUBERT – THE IMPACT ONE S T A T E A N D F I D U C I A R YLITIGATION

I. INTRODUCTION

The use of expert witnesses has becomeincreasingly common in the probate court, with thedueling experts each seeking to sell their theory to thejudge or jury. With the Texas Legislature’s “persistentexpansion” of the jurisdiction of the statutory probatecourt (see In re Graham, 971 S.W.2d 56 at 59 (Tex.1998), matters now come regularly before the probatebench (and necessarily involving the probate bar) thatwere previously only known to the environs of theDistrict Court.

Far beyond the standard fare of will contests andguardianship fights, the dockets of the statutoryprobate courts are now crowded with nursing homeabuse, wrongful death and medical and legalmalpractice cases.

Medical science in the late twentieth and earlytwenty-first centuries has handed us a two-edged blade:with the possibility of a longer life, we also face anincreasing possibility that some of our remaininglifespan will be spent in a condition of diminishedcapacity. In our grandparents’ day, most people died athome. Today, of the approximately 2 million peoplewho die each year in America, 80% die in hospitals orlong-term care facilities (see studies discussed inCruzan v. Director, Missouri Department of Health110 S. Ct. 2841 (1990)

Today, except for AIDS or anthrax, it iscomparatively rare in America to die of an infectiousdisease. Over three-quarters of all Americans who dieafter age 65 succumb either to cancer or cardiovasculardisease (heart attack or stroke).

Also, increased longevity, coupled with anunprecedented accumulation of wealth in America, hascreated a burgeoning “cottage industry” of probatelitigation. This paper will attempt to briefly review thedevelopment of the current standards for experttestimony and evidence under Texas jurisprudence,examine some of the principal areas in which experttestimony might be encountered in the probate arenaand discuss some practical pointers in using andchallenging experts.

II. DEVELOPMENT OF THE CURRENT

STANDARDS FOR ADMISSION OF EXPERTTESTIMONY

A. Frye v. United States -- The "GeneralAcceptance" Standard

Long before Daubert v. Merrell-DowPharmaceuticals, 113 S.Ct. 2786 (1993) (hereaftersometimes “Daubert”), the admissibility of scientific

testimony, particularly regarding novel scientifictheories, was addressed by the federal courts in Frye v.United States, 293 F. 1013 (D.C. Cir. 1923). Frye, thedefendant, was charged with murder. As a defense,Frye’s attorneys sought to introduce expert testimonyregarding the results of a “systolic blood pressuredeception test”, an early form of lie detector. The trialcourt refused to admit the evidence and the defendantwas convicted. The defendant argued on appeal thatsuch expert testimony should be admissible where aninexperienced person would be unable to form acorrect opinion because the testimony concerned ascience, art, or trade in which the person does not haveexperience, and where the issue does not fall withincommon knowledge.

The test formulated by the Court of Appeals for theD.C. Circuit was that the theory from which theexpert's deduction is made must be sufficientlyestablished to have gained general acceptance in thatparticular discipline. Frye at 1401. The trial judgeonly had the burden to determine whether the scientifictheory had gained "general acceptance," rather thanhave to evaluate the reliability of the particularscientific theory. If the scientific evidence had notgained general acceptance within the scientificcommunity, it would be deemed inadmissible.

B. Adoption of the Rules of Evidence

Subsequent to the ruling in Frye (1923), theFederal Rules of Evidence were adopted. In 1982,Texas adopted the Texas Rules of Evidence, largelymirroring the federal rules.

Federal Rule of Evidence 702, which governstestifying experts, provides:

“If scientific, technical, or other specializedknowledge will assist the trier of fact tounderstand the evidence or to determine afact in issue, a witness qualified as an expertby knowledge, skill, experience, training, oreducation may testify thereto in the form ofan opinion or otherwise.”

C. Daubert v. Merrell-Dow Pharmaceuticals --

Federal Rules of Evidence Supersede Frye In Daubert v. Merrell-Dow Pharmaceuticals, 113

S.Ct. 2786 (1993), two minor children and theirparents sued Merrell-Dow, alleging that the children'sbirth defects had been caused by their mothers' prenatalingestion of Bendectin, a prescription anti-nausea drugmarketed by Merrell-Dow.

Merrell-Dow filed for a summary judgmentsupported by the affidavit of an expert, based on areview of the published scientific literature on the

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subject, concluding that Bendectin was not shown tobe a risk factor for human birth defects.

The plaintiffs responded with eight experts of theirown, each arguing that Bendectin could cause birthdefects, and basing their conclusions on animal studies,chemical structure analysis and an unpublished "re-analysis" of previously published human statisticalstudies.

The trial court granted a summary judgment forMerrell-Dow, holding that the plaintiff's evidence didnot meet the "general acceptance" standard establishedby Frye for the admission of expert testimony.

The Ninth Circuit Court of Appeals affirmed,holding that expert opinion based on scientifictechnique is inadmissible unless the technique is"generally accepted" as reliable in the relevantscientific community, citing Frye. Because the re-analyses of epidemiological studies (by the plaintiff'sexperts) had neither been published nor subjected topeer review, the court concluded that the Dauberts’evidence provided an insufficient foundation to allowexpert testimony supporting the theory of causation ofthe birth defects and that the plaintiffs failed to carrytheir burden of proving causation.

On review by the Supreme Court, the High Courtheld that the Frye standard did not survive theenactment of the Federal Rules of Civil Evidence,which provide the applicable standard for admittingexpert scientific testimony. It noted that Frye'srestrictive "general acceptance" test was at odds withthe liberal approach of the Federal Rules of Evidence. Daubert, 509 U.S. at 588, 113 S.Ct. at 2794.

D. The Gatekeeper Role of the Trial Judge In reversing and remanding the matter to the trial

court, the Supreme Court charged the trial judge withthe responsibility to act as a "gatekeeper" to screenexpert testimony. To constitute "scientificknowledge," the proffered testimony must be bothreliable and relevant.

1. Threshold Determination: As a thresholddetermination required, the trial judge mustfirst determine, pursuant to Fed. R. Evid.104, whether the proffered testimony willassist the trier of fact in light of the Daubertfactors, whether there is a "valid scientificconnection to the pertinent inquiry" and thenmake a threshold determination regardingadmissibility. This determination largelyfulfills the relevance requirement

2. The Daubert Factors: The court in Daubertdid not give the trial judge a definiteyardstick or formula to follow, butenumerated the following four non-exclusive

factors to assist trial judges in determiningwhether scientific evidence is relevant andreliable (and therefore admissible underFederal Rule of Evidence 702) Id. 509U.S.At 591-94, 113 S.Ct. at 2796-97:

a. whether the theory or technique can beand has been tested to see if it can befalsified;

b. whether the theory or technique hasbeen subjected to peer review andpublication;

c. the technique's known or potential rateof error; and

d. the degree of acceptance of the theory ortechnique within the relevant scientificcommunity.

3. Testing the Evidence: The High Court mademuch of the benefit of vigorous crossexamination, presentation of contraryevidence, and careful instruction on theburden of proof, rather than wholesaleexclusion under an uncompromising "generalacceptance" standard, is the appropriatemeans by which evidence based on validprinciples may be challenged.

The trial judge is therefore given a good bit ofdiscretion to insure both the reliability of the expert'stestimony as well as its relevance.

III. T H E T E X A S S T A N D A R D S F O R

CHALLENGING RELIABILITY OF EXPERTTESTIMONY

A. The Texas Rules of Evidence The Texas Rules of Evidence, adopted in 1982,

largely follow the Federal Rules of Evidence. Thepertinent rules regarding expert testimony are asfollows:

1. Rule 702 Testimony by Experts If scientific,technical or other specialized knowledge willassist the trier of fact to understand theevidence or to determine a fact in issue, awitness qualified as an expert by knowledge,skill, experience, training or education maytestify thereto in the form of an opinion orotherwise.

2. Rule 703 Bases of Opinion TestimonyExperts The facts or data in the particularcase upon which an expert bases an opinionor inference may be those perceived by,reviewed by, or made known to the expert ator before the hearing. If of a type reasonably

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relied upon by experts in the particular fieldin forming opinions or inferences upon thesubject, the facts or ta need not be admissiblein evidence.

3. Rule 703 Reliability & Hearsay Rule 703imposes a reliability test, but expresslyprovides an exception to the hearsay rule forexperts. Also, under Rule 602, expertwitnesses are excepted from the usualrequirement that a witness may not testify toa matter without “personal knowledge” of thematter.

4. Rule 803 Hearsay Exceptions In addition,several portions of Rule 803 (the “HearsayExceptions”) are often cited in connectionwith the testimony of expert witnesses in theprobate courts:

(4) Statements for Purposes of Medical

Diagnosis or Treatment; (5) Recorded Recollection; (6) Records of Regularly Conducted

Activity; (7) Absence of entry in records kept

pursuant to the Provisions of Paragraph(6);

(8) Public Records and Reports;(9) Records of Vital Statistics; (10) Absence of Public Record or Entry; (14) Records of Documents Affecting an

Interest in Property; (15) Statements in Documents Affecting an

Interest in Property; (17) Market Repor ts , Commerc ia l

Publications; and (18) Learned Treatises.

5. Rule 704 Opinion on Ultimate Issue “Testimony [from an expert witness] in theform of an opinion or inference otherwiseadmissible is not objectionable because itembraces an ultimate issue to be decided bythe trier of fact.”

6. Rule 705 Procedural Protections: Disclosureof Data Underlying Expert Opinion

Disclosure of Facts or Data. The expertmay testify in terms of opinion Or inferenceand give the expert’s reasons thereforewithout prior disclosure of the underlying facts or data, unless the court requiresotherwise. The expert may in any eventdisclose on direct examination, or berequired to disclose on cross-examination,the underlying facts or data.

Voir Dire. Prior to the expert giving theexpert’s opinion or disclosing the underlyingfacts or data, a party against whom theopinion is offered¼in a civil case, may bepermitted to conduct voir dire examinationdirected to the underlying facts or data uponwhich the opinion is based. Thisexamination shall be conducted out of thehearing of the jury. Admissibility of opinion. If the courtdetermines that the underlying facts or datado not provide a sufficient basis for theexpert’s opinion under Rule 702 or 703, theopinion is inadmissible. Balancing test; limiting instructions: When the underlying facts or data would beinadmissible in evidence, the court shallexclude the underlying facts or data if thedanger that they will be used for a purposeother than as explanation or support for theexpert’s opinion outweigh their value asexplanation or support or are unfairlyprejudicial. If otherwise inadmissible factsor data are disclosed before a jury, a limitinginstruction by the court shall be given uponrequest.

7. Rule 403 Exclusion of Relevant Evidence on

Special Grounds Although relevant,evidence may be excluded if its probativevalue is substantially outweighed by thedanger of unfair prejudice, confusion of theissues, or misleading the jury, or byconsiderations of undue delay, or needlesspresentation of cumulative evidence.

B. Texas Cases on Expert Testimony 1. Pre-Daubert Expert Tests

Even before Daubert set a more stringent standardfor the admissibility of expert testimony, in Kelly v.State, 824 S.W.2d 568 (Tex.Crim.App. 1992), a DNAcase, the Texas Court of Criminal Appeals enumeratedmore specific tests for experts under Rule 702 of theTexas Rules of Criminal Evidence (before the mergerof the criminal and civil evidence rules in March1998). In Kelly, the appellate court held that experttestimony is “reliable” only if the underlying theoryand the technique applying it are valid and if thetechnique was properly applied on the occasion inquestion.

The Kelly factors affecting the trial court’sdetermination of reliability include:

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a. a general acceptance of the theory andtechnique by the relevant scientificcommunity;

b. the expert’s qualifications; c. the existence of literature supporting or

rejecting the theory; d. the technique’s potential rate of error; e. the availability of other experts to test and

evaluate the technique; f. the clarity with which the theory or technique

can be explained to the trial court; and g. the experience and skill of the person

applying the technique on the occasion inquestion. Id. (citing 3 WEINSTEIN &BERGER, WEINSTEIN’S EVIDENCE 702[03] (1991)).

2. Adoption of Daubert Rationale

Following the Daubert opinion, the TexasSupreme Court released two opinions offering theTexas guidelines on the use of expert testimony, E.I.du Pont de Nemours v. Robinson, 923 S.W.2d 549(Tex. 1995) and Burroughs Wellcome Co. v. Crye, 907S.W.2d 497 (Tex. 1995).

In Robinson, DuPont was sued over acontaminated batch of a fungicide alleged to havedamaged plaintiff’s pecan orchard.

The trial court granted a defense motion to excludethe testimony of the Plaintiff's sole expert on theground that his opinions were speculative andunreliable and granted a directed verdict for DuPont. The court of appeals reversed and remanded for a newtrial. The Texas Supreme Court reversed theintermediate appellate court and affirmed the trialcourt's judgment in favor of DuPont.

The Supreme Court began its opinion by pointingout that

¼in light of the increased use of expertwitnesses and the likely prejudicial effect oftheir testimony, trial judges have aheightened responsibility to ensure thatexpert testimony show some indicia ofreliability." “This is especially true,” thecourt declared, “when the proffered evidenceis based upon a novel scientific theory, or‘junk science.’

The Robinson court largely adopted theobservations of the U.S. Supreme Court in Daubert,abandoning the Frye 'general acceptance' test andadopting a baseline requirement of reliability andrelevance. However, rather than adopt the four non-exclusive factors cited in Daubert, the Court instead

chose to use the seven factors of reliability from Kellyv. State, supra.

Subsequent Court of Criminal Appeals cases haveheld Daubert's relevance and reliability standards to be"virtually identical" to the Kelly standard. See, Jordanv. State, 928 S.W.2d 550, 554 (Tex. Crim. App. 1996).

A. The Robinson Factors. A trial court mayconsider the following factors in determining reliabilityand therefore admissibility:

a. The extent to which the theory has beentested;

b. The extent to which the technique relies uponthe subjective interpretation of the expert;

c. Whether the theory has been the subject ofpeer review and/or publication;

d. The technique's potential rate of error; e. Whether the underlying theory or technique

has been generally accepted as valid by therelevant scientific community; and

f. The non-judicial uses which have been madeof the theory.

The Robinson court specifically noted that these arenon-exclusive factors and other factors may beconsidered. Even after the "relevant and reliable"determination, the trial judge must still determinewhether or not to exclude the evidence based on abalancing test of probative value vs. the danger ofunfair prejudice, confusion of the issues, misleadingthe jury, undue delay, or needless presentation ofcumulative evidence.” Id. at 557, Tex. R. Civ. Evid.403. A party challenging the opposing evidence isrequired to produce evidence of unreliability.

Procedurally, an objection to proffered experttestimony shifts the burden to the proponent toestablish admissibility. Further, Robinson makes itclear that it is not the role of the judge to determine thetruth or falsity of the expert’s opinion, but rather thetrial judge (and not the jury) must make the initialdetermination of relevance and reliability, based on thelisted criteria.

3. Extension of Daubert/Robinson Criteria to AllExpert Testimony

a. Texas – In Merrell Dow Pharmaceuticals, Inc. v. Havner,

953 S.W.2d 706 (Tex. 1997), (as Daubert, aBendectin-related damages case) the Court analyzedthe reliability of epidemiological studies and theirrelationship to causation. Perhaps the most significantruling in Havner is the holding in the concurringopinion of Justice Gonzalez that the Robinson factorsapply to all expert testimony which is subject to Rule702, not merely "junk science." The Court of Criminal

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Appeals took a similar position in Hartman v. State,946 S.W.2d 60, 63 (Tex. Crim. App. 1997). In Nennov. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998),overruled on other grounds, State v. Terraza, 4 S.W.3d720 (Tex. Crim. App. 1999), the Court of CriminalAppeals held that “soft sciences” are subject toRobinson/Kelly requirement of expert qualificationsand reliability. “When addressing fields of study asidefrom the hard sciences, such as the social sciences orfields that are based primarily upon experience andtraining as opposed to the scientific method, Kelly’srequirement of reliability applies but with less rigorthan to the hard sciences. To speak of the validity of a‘theory’ or ‘technique’ in these fields may be roughlyaccurate but somewhat misleading. The appropriatequestions are: (1) whether the field of expertise is alegitimate one, (2) whether the subject matter of theexpert’s testimony is within the scope of that field, and(3) whether the expert’s testimony properly relies uponand/or utilizes the principles involved in the field. These questions are merely an appropriately tailoredtranslation of the Kelly test to areas outside of hardscience.” These Nenno factors have since been appliedby civil courts. See Coastal Tankships U.S.A., Inc. v.Anderson, 87 S.W.3d 591 (Tex. App. – Houston [1st

Dist.] 2002, writ denied) (“trial courts, functioning intheir role as gatekeepers, have wide latitude [in theadmission of expert testimony].”)

b. Nationally – The United States Supreme Court, in the 1999

decision of Kumho Tire Corp., Ltd. v. Carmichael, 119S.Ct. 1167, 526 U.S. 137 (1999), resolved the issue, ona national basis, of whether Daubert and Robinson,applied only to "hard sciences," such as testing,research, and analysis or was intended to extend toclinical sciences. In Kumho, the Supreme Court heldthat the gatekeeper function of the trial court,established in Daubert applied to all expert testimony. Id. at 1174.

4. Additional Texas Cases following RobinsonA. Expert Testimony May Still be "No

Evidence" In Burroughs-Wellcome v. Crye,907 S.W.2d 497 (Tex. 1995), a companioncase to Robinson, the Texas Supreme Court,rather than focus on the 'gatekeeper' functionof the trial judge, held that Plaintiffs' experttestimony regarding causation constituted"no evidence" of damages in light of theexpert's admission that his own methodswere sloppy and unreliable.

B. No Universal Experts (Medicine) In Brodersv. Heise, 924 S.W.2d 148 (Tex. 1996), theTexas Supreme Court upheld the trial court's

exclusion of the plaintiff's expert, anemergency room physician, holding that:"[T]here is no validity¼ to the notion thatevery licensed medical doctor should beautomatically qualified to testify as an experton every medical question." The fact that theexpert's undoubtedly greater knowledge didnot establish that his expertise on the issue ofcause in fact met the requisites of Rule 702.Id. at 152, 153.

The Court emphasized that its holding "does not meanthat only a neurosurgeon can testify about the cause infact of death from an injury to the brain, or even thatan emergency room physician could never sotestify...[w]hat is required is that the offering partyestablish that the expert has knowledge, skill,experience, training or education regarding the specificissue before the court which would qualify the expertto give an opinion on that particular subject." Id. at153.

C. “Repressed Memory" In S.V. v. R.V., 933S.W.2d 1 (Tex. 1996), a case dealing with'repressed memories' of past sexual abuse, theRobinson analysis was applied to support theholding that the expert's testimony did notmeet the guidelines for admissibility. Largelyon the bases that 1) the theory could not betested empirically, 2) the subjective nature ofthe expert's interpretation of the diagnosis,and 3) the very high potential error rate.

D. Procedural Steps in Preserving a RobinsonChallenge/ Guidelines for a 'No Evidence'Complaint Maritime Overseas Corp. v.Ellis, 971 S.W.2d 402 (Tex. 1997) gives usprocedural guidelines for preserving error ina Robinson-type challenge: 1) The error mustbe preserved at the trial court level and maynot be raised for the first time on appeal. 2)The challenging party must: a) make itsobjection to the reliability of the expert'sopinions prior to trial; b) raise the issue viaMotion in Limine; c) object to the expert'stestifying at the time he is called; and d)obtain a running objection to that line oftestimony.

Additionally, the opinion provides guidelines forsustaining a 'no-evidence' complaint. Earmarks of a'no-evidence' situation include: 1) a complete absenceof a vital fact; 2) no more than a scintilla of evidence isoffered to prove a vital fact; 3) rules of law or evidencebar the reviewing court from giving weight to the onlyevidence offered to prove a vital fact; or 4) the

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evidence conclusively establishes the opposite of thevital fact.

E. No Universal Experts (Engineering) InGammill v. Jack Williams Chevrolet, Inc.,972 S.W.2d 717 (Tex. 1998) a productsliability suit, the Supreme Court first notedthat "just as every physician is not qualifiedto testify as an expert in every medicalmalpractice case, not every mechanicalengineer is qualified to testify as an expert inevery products liability case." In deciding thecase (and rejecting the plaintiff's expert), thecourt did not apply the Robinson factors forreliability and relevance, instead applyingonly a threshold validity test of whether thescientific basis for the conclusion was valid.

F. Evidence Not Significant under Havner InWeiss v. Mechanical Associated Services,Inc., 989 S.W.2d 120 (Tex. App.--SanAntonio 1999, no writ), the appellate courtaffirmed a no evidence summary judgmentagainst nurses complaining of work-relatedhealth problems involving x-ray equipment. The San Antonio Court of Appeals found thatthe deposition testimony of the plaintiff'sexpert regarding faulty ventilation around thex-ray equipment survived the Robinsonchallenge, but failed to meet the standard forsignificant evidence under Havner. (Thetheories could not or had not been tested;expert testimony not based on any scientificevidence; thei r fa i lu re to o fferepidemiological studies; their inability todemonstrate generally accepted validity ofmethod of diagnosis; and an inability to ruleout other plausible causes.)

G. Failure to Meet Robinson Factors: SiliconeImplan ts Minneso ta Min ing &Manufacturing Co. v. Atterbury, 978 S.W.2d183 (Tex. App.-- Texarkana 1998, no writ),examined the causal relationship betweensilicone breast implants and multiplesclerosis, methodically applying theRobinson factors: no testing of theory; noreliable, objective evidence to supporttheory; no published articles by expertdespite many years research; no rate of errorgiven; inability to exclude other causativefactors; admission that opinions not generallyaccepted; and no testimony as to nonjudicialuses made of the opinions.

H. Expertise Based on Education andExperience May Trump Scientific Data OlinCorp. v. Smith, 990 S.W.2d 789 (Tex.App.-

Austin 1999, writ denied). (products liability/ gunshot injury) Expert testimony supportedby scientific data is not necessarily superiorto testimony that is simply based oneducation and experience. Court analyzed theexpert testimony at issue under the lessstringent requirements of Gammill,emphasizing that the Robinson factors werenot exclusive. Also, the testimony was foundreliable where corroborated by theeyewitness testimony and was based onexperience, training, and skill.

I. Expert Reliability Shown (Home Fire) DoyleWilson Homebuilder, Inc., v. Pickens, 996S.W.2d 387 (Tex.App.-Austin 1999, nowrit). Expert's testimony that isolated poorconstruction and installation technique asparticular theory of causation where multipleother theories were possible (gnawinginsects, rodents, electrical storm andmanufacturing defects) held to be reliablewhere the expert was able to give plausibleexplanations why he discounted the othertheories. Held not to be speculation whereexpert adequately demonstrated how he hadruled out other causes, and the opposition didnot introduce evidence of any other potentialcause.

J. Expert Reliability Shown (Metallurgist andElectrical Engineer) Ford Motor Company v.Aguiniga, 9 S.W.3d 252 (Tex.App.-SanAntonio 1999, pet. denied) (Opinions ofexperts held reliable despite not meetingRobinson factors, where reliability underGammill shown in testimony as to howconclusions reached, ruling out other causes,and lack of opposing evidence by other side.

K. Expert Reliability Shown Despite Lack ofTesting (Burn Injuries) In the Interest ofD.S. and C.R.R., 19 S.W.3d 525 (Tex.App.-Fort Worth 2000, n.w.h.). (Personal injuryburn case) In a holding that would be theinverse of Gammill, the trial court heldexpert's testimony to be reliable even thoughexpert could not satisfy Robinson criteriawhere re-creation of causative conditions totest hypothesis felt to be immoral. Courtrelied on expert's substantial experience intreating burn injuries, identification ofnumerous generally-accepted objectivediagnostic criteria for burn treatment, anddemonstration of how opinion was based onapplication of each criteria to the specificburns at issue.

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L. Expert Opinion Upheld - No ContradictoryLiterature Texas Workers' CompensationInsurance Fund v. Lopez, 21 S.W.3d 358(Tex.App.-San Antonio 2000, n.w.h.). Expert opinion of chronic obstructivepulmonary disease (COPD) caused byexposure to sandblasting dust duringemployment. Acceptance of expert'stestimony upheld where opinion, eventhough at odds with results of citedepidemiological studies, did not contradictthe scientific literature, and no contradictorystudies were in evidence.

M. Expert Opinion Unreliable - No SpecificCausation Shown (Veterinary Malpractice) Hight v. Dublin Veterinary Clinic, 22 S.W.3d614 (Tex.App.-Eastland 2000, n.w.h.). Death of goat during routine surgicalprocedure. Plaintiffs' expert foundunreliable. Expert opined that death couldonly occur as a result of negligence andfailed to establish, or even allege, specificcausation

N. Expert Opinion Unreliable - No SpecificCausation Shown (Leukemia) Austin v. Kerr-McGee Refining Corp., 25 S.W.3d 280(Tex.App.-Texarkana 2000, n.w.h.). (Particular strain of leukemia alleged to havebeen caused from on the job exposure tobenzene.) Expert found unreliable whereunable to demonstrate both general andspecific causation. General causation shownby scientific literature showing statisticallysignificant connection (odds ratio greaterthan 2.0) between benzene exposure andleukemia in general. The plaintiff's expertwas unable to show that benzene exposurecauses the particular type of leukemia inquestion, so that no specific causation wasdemonstrated.

O. Expert Must Be “Helpful” (Slip and Fall) K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,360 (Tex. 2000). Human factors and safetyexpert in slip and fall case found not helpfulto the jury because his opinions involvematters within the average juror’s commonknowledge. Expert testimony assists the trier-of-fact when the expert’s knowledge andexperience on a relevant issue are beyondthat of the average juror and the testimonyhelps the trier of fact understand the evidenceor determine a fact issue.

P. Expert Opinion Unreliable - InsufficientEvidence of Methodology used (parentaltermination) In Re CDK, 64 S.W.3d 682

(Tex. App.– Amarillo 2002, no pet.) Expert’s opinion found unreliable wherethere was insufficient evidence to show theunderlying methodology for a testadministered for sexual deviancy. The expertdid not explain how the test was interpretedand the imperical basis for its conclusions. The court stated that “for all we know, [thetest’s] components could be mathematicallybased, founded upon indisputable impericalresearch, or simply the magic of young HarryPotters’ mixing potions at the HogwartsSchool of Witchcraft and Wizardry.”Id. at683-84.

Q. Expert Reliability Shown Regarding MixedQuestion of Law and Fact (Child CareCenter) In Mega Child Care, Inc. v. Tex.Dep’t of Protective & Regulatory Servs., 29S.W. 3d 303, 309-10 (Tex. App. – Houston[14 Dist.] 2000, no pet.), a DPRS employeeth

of 20 years was permitted to testify that adaycare center was operating outside the lawand in violation of certain standards fordaycare licensing as an opinion on a mixedquestion of law and fact regarding whethercertain actions violated the Human ResourcesCode. Although a witness may not offer anopinion on a pure questions of law, an expertwitness may offer an opinion on a mixedquestion of law and fact. “An issue involvesa mixed question of law and fact when astandard or measure has been fixed by lawand the question is whether the person orconduct measures up to that standard.” Id at309.

R. Expert Opinion Unreliable - No General -Causation Testimony (Pneumonia/Boop) Coastal Tankships, U.S.A., Inc. v. Anderson,87 S.W.3d 591 (Tex. App. – Houston [1st

Dist.] 2002, writ denied). Expert foundunreliable were unable to demonstrategeneral causation. The Court found thatthere was legally insufficient evidence thatexposure to Naphtha played any part “eventhe slightest” in causing the decedent’s Boop. Id. at 612. This case provides a detailedhistory of Robinson and its progeny.

S. Expert Reliability Shown (Burn MarksResulted From Force Immersion) In Re D.S.,19 S.W.3d 525 (Tex. App. – Fort Worth2000, no pet.) Non-Scientific testimony canbe analyzed by applying the generalreliability test espoused in Gammill. Thestate’s doctor was a general surgeon at ahospital’s burn unit with 25 years of

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experience in treating burn victims. Although he did not rely on any scientificstudies, based upon his extensive experience,he was able to articulate the factors andmethodology he used. In analyzing theunderlying data forming the basis for thenon-scientific expert’s opinion, the Courtdetermined the “[c]ritical inquiry is whetherthere is an ‘analytical gap’ between theopinion and the basis on which it isfounded.” Id. at 529. This court found nosuch gap and affirmed the trial court’sadmission of the testimony.

IV. GETTING A HANDLE ON GATEKEEPING:

THE “EIGHT GATES”

Perhaps the finest legal writing in the entire fieldof analysis on Daubert and Robinson is a two-part lawreview article by Harris County District Judge HarveyBrown. Eight Gates for Expert Witnesses, 36 HoustonLaw Review 743 (Fall 1999) and Procedural Issuesunder Daubert, 36 Houston Law Review 1133 (Winter1999)

Judge Brown methodically analyzes theadmissibility of expert witness testimony after Daubertand its progeny, considering the impact of all majordecisions and statutes in the field. From this analysis,he has developed a series of tests for the trial courtjudge to use in fulfilling the 'gatekeeper' functionassigned by the United States and Texas SupremeCourts:

A. Gate One: Helpfulness –Pursuant to Rule702, the subject matter of the expert’stestimony must “assist the trier of fact.” Ifthe expert’s methodology, reasoning, orfoundation is unreliable, the evidence willnot assist the trier of fact.

B. Gate Two: Qualifications –the expert mustbe qualified on a case specific opinion-by-opinion basis.

C. Gate Three: Relevancy –The experttestimony must be sufficiently tied to thefacts of the case so that it will aid the jury inresolving the factual dispute.

D. Gate Four: Methodological Reliability Theexpert’s methodology must be reliable.

E. Gate Five: Connective Reliability –Theexpert’s reasoning applying his/hermethodology must be sound for the expert’sopinion to be admissible.

F. Gate Six: Foundational Reliability–Reliability of the underlying facts or dataupon which the expert’s opinion is based.

G. Gate Seven: Reliance Upon Inadmis-sibleEvidence Used by Other Experts –Anexpert’s opinion is admissible when it isbased on facts or data not independentlyadmissible only if those facts or data reliedupon by the expert are of a type reasonablyrelied upon by the majority of experts in thewitness’ field.

H. Gate Eight: Rule 403, “Unfair Prejudice”–Even if the expert opinion testimony passesthe seven gates, if it is unfairly prejudicialpursuant to the standards of TRE 403, then itis inadmissible.

V. A CONTINUUM OF EXPERTS

The following is a non-exhaustive collection ofcases illustrating the various general types of situationswhere experts may or may not be necessary:

A. When Experts are Required Not only an expert, but the right expert

1. Medical Malpractice An expert must testifyas to the relevant standard of care and howthe defendant doctor’s failure to meet thatstandard caused the injury. Roark v. Allen,633//804 (Tex. 1982) The expert must bequalified by training and knowledge to givean opinion on the specific standard of care.Broders v. Heise, 924 S. W. 2d 148 (Tex.1996)

2. Legal Malpractice or other ProfessionalNegligence An expert must testify as to therelevant standard of care and how the failureto meet that standard caused the injury.Onwuteaka v. Gill 908 S. W. 2d 276 (Tex.App. – Houston [1 Dist.] 1995, no writ) st

3. Future Medical Care or RehabilitativeTreatment Here, too, the expert must bequalified by training and knowledge to givean opinion on the specific issue. K-Mart v.Rhyne, 932 S. W. 2d 140 (Tex. App. –Texarkana 1996, no writ) (chiropractor notqualified to testify re: necessity or cost offuture surgery.) Baker Marine v. Herrera,704 S. W. 2d 58 (Tex. App. – Corpus Christi1985, writ ref’d nre) Rehab counselor notqualified to testify re: future medical care.)

4. To Prove Causation in a Toxic ExposureCase Merrell Dow v. Havner 953 S. W. 2d706 (Tex. 1997) (Judgment rendered fordefendants after determination that all ofplaintiff’s expert testimony regardingcausation was unreliable.)

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5. To Demonstrate Future Lost Profits TexasInstruments v. Teletron 877 S. W. 2d 276(Tex. 1994) (Setting forth factors to consider inevaluating lost profits and noting that lostprofits must be proven with a reasonabledegree of certainty)

B. When Experts are Helpful

Even though Rule 702 requires expert testimonyto actually “assist the trier of fact” and subjects theexpert’s testimony to scrutiny, on occasions, experttestimony may be helpful to the court or jury if theopinions offered have “a connection to the pertinentinquiry” Daubert, 509 U. S. at 591-92.

Expert testimony should generally not be offeredon those matters within the experience andunderstanding of the average juror. Hibiscus Assoc. v.Board of Trustees, 50 F. 3d 908 (11 Cir. 1995); K-th

Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000); Dunnington v. State, 740 S. W. 2d 896 (Tex.App. – El Paso 1987, pet. ref’d) However, Rule 702gives the trial judge discretion to allow an expert totestify about matters within the knowledge of theaverage juror if it is of overall help to the jury orprovides some unique comprehension of the subject.Joiner v. State, 825 S. W. 2d 701 (Tex. Crim App.1992) (psychiatric testimony re future dangerousnessin a criminal case)

1. Mixed Question of Law and Fact Birchfieldv. Texarkana Memorial Hosp., 747 S. W. 2d361, (Tex. 1987) (Allowed as long asconfined to the relevant issues and the expertrelies upon the proper legal concepts) MegaChild Care, Inc. v. Tex. Dep’t of Protective &Regulatory Servs., 29 S.W. 3d 303, 309-10(Tex. App. – Houston [14 Dist.] 2000, noth

pet.) (Expert witnesses may offer opinionson mixed questions of law and fact. Whilethe legal standard itself is a question of law,where the issue is “whether the person orconduct measures up to that standard,” it is amixed question of fact and law.)

2. Design Defect or Feasible AlternativeDesign – Products Liability Case Gammillv. Jack Williams Chevrolet, 972 S. W. 2d 713(Tex. 1998) But an untested alternativedesign is not likely to be allowed. Watkins v.Telsmith, 121 F. 3d 984 (5 Cir. 1997) th

3. Security Experts Glasscock v. Income Prop.Servs. 888 S. W. 2d 176 (Tex.App. –Houston [1 Dist.] 1994, writ dism’d by agr.)st

In case alleging failure to prevent criminalactivity on premises.

4. Slipperiness on a Wet Floor Buscaglia v.United States 25 F. 3d 530 (7 Cir. 1994)th

Always subject to soundness of underlyingmethodology.

5. Economic Analysis or Calculation – Whileprobably essential to demonstrate future lostprofits within a reasonable certainty, (TexasInstruments v. Teletron, supra) experteconomic testimony is sometimes helpful tothe judge or jury on issues such as pasteconomic losses and future lost wages,especially if those issues are hotly contested.Fazakerly v. Fazakerly, 996 S.W.2d 260(Tex. App. - Eastland, 1999,pet. denied )

6. Accuracy of Identification Nations v. State944 S. w. 2d 795 (Tex. App. – Austin, 1997,pet. ref’d) (regarding reliability ofeyewitnesses)

C. When Experts are Neither Required nor

Helpful The Court as gatekeeper must always ask the

threshold question: Does this expert have anythingrelevant and admissible to add to this case? If theanswer is "no," then the expert should be excluded.

1. That a party provoked an assault. Dieter v.Baker Serv. Tools 776 S.W.2d 781 (Tex. App- Corpus Christi 1989, writ denied)

2. That a photograph is or is not aphotograph of the Defendant. United Statesv. Dorsey, 45 F. 3d 809 (4 Cir. 1989) th

3. That a floor was slippery. Getter v. Wal-Mart Stores, 66 F. 3d 1119 (10 Cir. 1995)th

(but cf. Buscaglia v. United States, supra,where methodology of expert was approved)

4. That the lack of a top railing created anunreasonable risk. K-Mart Corp. v.Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)

5. That walking on railroad tracks is notnegligent. Andrews v. Metro North CommuterR.R. 882 F. 2d 705 (2 Cir. 1989) nd

6. That another witness is lying. Yount v. State872 S.W.2d 706 (Tex. Crim App. 1993) (Juryis sole judge of credibility of the witnesses. T.R. Civ. Pr. 226a)

7. Expert economic testimony concerningnon-economic losses such as pain andsuffering and loss of consortium. TraylorBros. V. Garcia, 949 S.W.2d 368 (Tex. App. -San Antonio 1999, n.w.h.)

8. Whether alleged emotional distress was“severe” in an intentional infliction case. Shauer v. Memorial Care Systems, 856

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S.W.2d 437, 451 (Tex.App.-Houston [1st

Dist.] 1993, no writ). 9. Questions of law Even if an expert can pass

muster under Robinson, testimony in certaininstances is per se inadmissible. Experttestimony may not be used to instruct the juryas to the law or as to the application of law tothe specific facts of the case. A witness maynot give legal conclusions or interpret the lawto the jury. K-Mart Corp. v. Honeycutt, 24S.W.3d 357, 360 (Tex. 2000); United Way ofSan Antonio v. Helping Hands LifelineFoundation, Inc., 949 S.W.2d 707, 713(Tex.App.-San Antonio 1997, writ denied).

Since the trial court is presumed to have specializedcompetency in all aspects of the law, legal conclusionsare almost never admissible. Holden v. Weindenfeller,929 S.W.2d 124, 133-134 (Tex.App.-San Antonio1996, writ denied).

The following are examples of when courts havefound expert opinions on “questions of law”inadmissible:

a) Testimony as to whether fiduciary dutieswere actually breached. Askanase v. Fatjo,130 F.3d 657, 673 (5 Cir. 1998). th

b) Testimony as to whether a party actuallyowed a duty. Puente v. ASI Signs, 821S.W.2d 400, 402 (Tex.App.-Corpus Christi1991, writ denied).

c) Testimony as to the existence and extent of atrustee’s duty. Harrison v. Wells Fargo BankTexas, N.A., 1999 WL 130176(Tex.App.-Hous[14 Dist.] March 11, 1999),t h

unpublished opinion d) Testimony as to whether fraud was

committed, Connell v. Connell, 889 S.W.2d543, 545 (Tex.App.-San Antonio 1994, writdenied).

e) Testimony that a fiduciary duty exists, towhat extent it actually exists and theapplicable standard of care. Brown v.McCleskey, 1999 WL 795478 (Tex.App.-Amarillo 1999, unpublished opinion)

f) Testimony concerning domestic law. Holdenv. Weindefeller, 929 S.W.2d 124, 133-134(Tex.App.-San Antonio 1996, writ denied).

g) Testimony concerning whether certainstatements were disparaging in a businessdisparagement case. United Way of SanAntonio v. Helping Hands LifelineFoundation, Inc., 949 S.W.2d 707, 713(Tex.App.-San Antonio 1997, writ denied).

VI. THE CARE AND FEEDING OF EXPERTS While the goal of every expert is to help you win

your case, this goal can get overlooked when you shiftinto 'automatic' in getting the case prepared. Take ahard look at the experts (if any) your case needs. Consider whether aggressive cross-examination mightjust as effectively counter the other side's expert. Youmay be able to carry the day with fact witnesses. Those experts who are not “helpful” to the court aregenerally the same experts who will not withstand aDaubert challenge. Testimony about whether therewas a full moon could be relevant if darkness is anissue in the case, but probably not to show that itcaused a person to behave as a lunatic. Daubert, 509U.S. at 591-92 A. Guardianship/Capacity Issues

Hiring a psychiatrist or neurologist who hasexperience determining and testifying to capacity, orlack thereof, in guardianship proceedings is of greatimportance. They will be familiar with the legal testfor capacity. Geriatric psychiatrists and neurologistsshould be used in appropriate cases if possible due totheir specialized knowledge. A good approach toselecting an expert is to ascertain and hire thephysician the judge appoints on independentpsychiatric exams. These individuals generally havethe judge's respect and the requisite level of expertisein the areas of capacity and mental examinations.

Regardless of who is selected, he or she should beboard certified, if possible, and have adequatecredentials. Most judges will be leery about dismissingan application for guardianship with no medicaltestimony. If you choose to go forward without aphysician (primarily in challenging a guardianship,where medical testimony is required to grant theguardianship), consider hiring an alternative expertsuch as a nurse, social workers, or experienced homehealth care workers.

B. Qualification for the Specified Area Be sure your expert is specifically “qualified”. So

many professions have grown so complicated, manyprofessionals other than physicians, particularly inurban areas, specialize. The practice of C.P.A.’s canvary widely – from oil and gas, to business formation,to purely tax, to estate and gift, to fiduciary accounting. General qualifications are no longer good enough. Green v. Brantley, 11 S.W.3d 259, 263 (Tex.App.-Ft.Worth 1999, pet. denied) (Having a law license is notsufficient to qualify an attorney to testify as an expertin all areas of the legal profession.). Broders v. Heise,supra

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C. Did I Really Say That? Communications with any testifying expert will

not be privileged. Notes taken by the expert, lettersfrom counsel to the expert and documents provided bycounsel to the expert are not privileged.

If your expert is inexperienced as a testifyingexpert, make sure he/she is made aware that allcommunication (notes, letters, e-mail, and other“recordings”) are discoverable by the other side.

D. Start Off in First, Then Shift Gears It might be better to start off with your expert as a

consulting expert, and not “unwrap” him/her as adesignated “testifying expert” until you havethoroughly researched and sifted the data so that youknow precisely what opinions you want and you aresure he/she will be able to give you those opinions.

E. Once the Toothpaste is out of the Tube¼After you have designated your testifying expert,

remember: all documents sent to and received by suchexpert relating to the issues on which he will testifybecome discoverable, even those initial documentsreviewed when he/she was still just a consulting expert. From day one – every written communication (letter,note , or e-mail) to every expert - potential, retained,consultant or designated – should be treated as thoughthe jury will get to see it.

Keep a detailed log of the documents you ask anexpert to review. To avoid unpleasant surprises, makesure he or she tells you before he testifies (or isdeposed) what else he has looked at or considered.

Precisely define the opinions that you expect theexpert to give. Do not expect the expert to understandall of the nuances of your case.

F. Give Your Expert the Tools to Do the Job Unless your expert is an expert on the law, never

assume he/she knows the applicable law. Supply thecorrect and precise legal definitions and bases of anyterms, concepts or processes (e.g., testamentarycapacity, contractual capacity, undue influence, insanedelusion) which may be involved in the case. Don’tget caught flat-footed with the expert having to ask fora definition from your opponent during deposition or(even worse) at trial. Just because your expert canwithstand a Robinson challenge doesn’t ensure he orshe will be an effective witness. Scientific expertise isthe expert’s forté, effective trial communication isyours.

If there are weaknesses in your expert’spresentation, find some tactful way to point these outto eliminate traps and pitfalls during deposition (whichwill be brought out again in cross-examination) and,

perhaps even more importantly, to avoid confusing thejury.

G. Simplify, Simplify, Simplify Whenever possible, help the expert to be more

“user-friendly” to the judge and jury. If technicalterms just cannot be avoided, get the expert to give thejury a “Spot. See Spot run.” definition for the terms. Tying the concept to a visual aid (model, graph, poster)will help the jury see it your way. (See below).

H. Practice, Practice, Practice If you anticipate using demonstrative evidence

(models, charts, graphs, etc.), first, be sure they can beaccommodated by the court (e.g., if you need to use adigital projector). Second, make sure of the accuracyof your data from a legal and factual standpoint. Thenthoroughly school your expert with that demonstrativeevidence to ensure both you and the expert are able toflawlessly present the evidence.

If you have a will contest and the issue oftestamentary capacity is your key concept – have thedefinition you know will be used in the charge madeinto a poster and keep it constantly before the jury –during voir dire (but probably not during openingstatements) and every time the term comes up with anywitness, including not only your expert, but especiallywith the expert for the other side. It will appear thatyou “own” the concept.

Remember: It takes years of piano lessons andpractice to be able to nonchalantly walk into aroom, sit down and play an “impromptu” piece. VII. W H E N A N D H O W T O

CHALLENGE/ATTACK AN EPERT

A. Timing Properly challenging an expert not only requires a

knowledge of the law, but also some tactical planning. The first (and most important) consideration is whenyou raise the challenge. You must seriously considerthe wisdom of raising a challenge for the first time asthe expert raises his right hand to be sworn. Neitherthe jury (who will not understand why they have to gowait in the hall again) nor the judge (who is givenbroad discretion to exclude or allow an expert) will beamused. Raising the challenge during the trial reallyprevents the gatekeeper (judge) from having adequatetime to review and consider your motion.

Where the rule rather than the exception is forjudges to use thorough pre-trial scheduling proceduresto allow complete preparation for trial, you shouldraise the challenge to an expert early on. If you areable to exclude an expert, you may have excellentgrounds for a summary judgment. Even if you areunsuccessful on summary judgment, you will have

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gone a long way toward letting the court know whereyou think the proof problems are. 1. Prior to Trial

Wait until the appropriate deadline passes. Thiswill limit your opponent's ability to designate anotherexpert if you are successful in your challenge. Crucialdeadlines include:

a. TRCP Rules 194 and 195 deadlines fordesignating experts;

b. The deadline "agreed to" in a pretrialscheduling order; and

c. A statutorily-mandated time period, e.g.:Section 14.01(e) of Art. 4590i ("MedicalLiability and Insurance Improvement Act")

2. At the Pre-Trial Although you may choose to "lay behind the log"

as long as possible to retain the element of surprise,consider the effect this may have on the judge. If youhave been sitting on your information and not calling itto anyone's attention, the Court probably will notappreciate your waiting. You are pressuring the judgeinto “shooting from the hip” - a technique oftencalculated to prompt the judge to let the witness testify(under an abuse of discretion standard) and leave it upto the jury to decide whether the expert had “the rightstuff.”

3. At the Motion in Limine Waiting until a Motion in Limine is heard is

basically the same as waiting until the witness iscalled. The more current practice is to provide in a pre-trial scheduling order for the deadlines for challengingwitnesses and motions in limine, often at the pre-trial.

4. At Trial If the Court does not grant your Motion to Strike

or Motion in Limine, you must renew your objection tothe expert at the time he is called to testify and eachtime the witness testifies improperly. See Piro v.Sarofim, 80 S.W.3d 717, 720 (Tex. App. – Houston [1st

Dist.] 2002, no writ). Pre-trial motions such as amotion in limine do not preserve error. Acord v.General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984). Prior or subsequent testimony, admitted withoutobjection, waives all error. Richardson v. Green, 677S.W.2d 497, 501 (Tex. 1984).

5. Continually Educate the Jury Explain the legal issues involved to the jurors

from voir dire forward so that they can be evaluatingand comparing the expert opinions with the legalstandard (or at least your version prior to the charge).

Continue the education process through your direct andcross examination and then with your final argument. B. Is an Expert Even Necessary?

One line of attack is not whether the expert isqualified, but whether any expert is necessary at all. Ifthe expert testimony will not assist the trier of fact(Rule 702) , either because the subject is one on whichexpert testimony or because the methodology by whichthe expert has reached his opinions is unreliable, thenthe expert will not be allowed to testify at all. If only alimited portion of the expert's testimony will assist thetrier of fact, then an appropriate limiting instructioncan be requested and given to the jury, limiting thetestimony to those areas in which it will assist the jury. It is important to establish that the expert's testimony isnecessary to assist the trier of fact, and in selectingcases, the lawyer must be prepared for this potentialattack.

C. Is This Expert Qualified? - Shooting theMessenger Robinson and Daubert only deal with the

admissibility of proffered expert testimony, and notwith the qualifications of the expert. Tex. R. Civ.Evid. 104(a) requires the Court to make a preliminarydetermination as to both the qualifications of a witnessand the admissibility of evidence. Milkie v. Metni, 658S.W.2d 678, 679 (Tex. App.--Dallas 1983, no writ);Sears v. Cooper, 574 S.W.2d 612, 615 (Tex. Civ.App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). Thejudge must determine whether an expert is needed andif so, is the proffered expert qualified. See also Fed. R.Evid. 104 ("Preliminary questions concerning thequalification of a person to be a witness...or theadmissibility of evidence shall be determined by thecourt....")

1. Hearings under Rule 104. Hearings onchallenges to the qualifications of a witnessor the admissibility of his testimony are heldoutside the presence of the jury "when theinterests of justice so require." Tex. R. Civ.Evid. 104(c); Fed. R. Evid. 104(c). However, Rule 104 in no way limits a party'sright to introduce evidence of an expert's lackof qualification when such is relevant to theweight or credibility to be given to theexpert's testimony. Tex. R. Civ. Evid.104(d); Fed. R. Evid. 104(e).

2. What are you looking for? The first thing todetermine is whether the proffered expert hasthe right kind of qualifications to render anykind of opinion in the case at all. Attack anylack of skill, experience, education or

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training. Recognize, however, that anycombination of the four may be sufficient toqualify the witness on some matters. Jones v.Hudgins, 876 S.W.2d 418 (Tex. App. - ElPaso 1994, writ denied)

3. Free at Last? Remember that, indetermining the qualifications of witnesses,Rule 104(a) liberates the judge from the rulesof evidence. Johnson v. State 803 S.W.2d272 (Tex. Crim. App. 1990) cert. denied 501U.S. 1259, 111 S.Ct. 2914, 115 L.Ed. 2d1078 (1991)

4. Burden on proponent. The party offeringthe expert's opinion has the burden ofestablishing that the expert is qualified, thatis, the expert possesses a higher degree ofknowledge than an ordinary person or thetrier of fact. ITT Commercial FinancialCorp. v. Riehn, 796 S.W.2d 248, 250 (Tex.App.--Dallas 1990, no writ). Prellwitz v.Cromwell, 802 S.W.2d 316, 317 (Tex. App.--Dallas 1990, no writ).

a. Evidence of expertise. The proponentmay discharge his burden by merelyshowing that the expert is trained in thescience about which he testifies or hasknowledge of the subject matter of thefact in question. Missouri PacificRailroad Co. v. Buenrostro, 853 S.W.2d66, 77 (Tex. App.--San Antonio 1993,no writ); Potter v. Anthony CraneRental of Texas, 896 S.W.2d 845 (Tex.App.--Beaumont, 1995, writ denied) ("Itis not necessary for an expert to be aspecialist in a particular branch of a fieldas long as the expert has knowledge andskills which are not possessed by peoplein general").

b. Failure to offer evidence constitutesproper grounds for exclusion. In Jamesv. Hudgins, 876 S.W.2d 418 (Tex. App.--El Paso 1994, writ denied), Defendantdeposed Plaintiff's expert and inquiredinto his qualifications. AlthoughPlaintiff had sufficient opportunity, bothduring the deposition, after thedeposition and before the trial toestablish the expertise of the expert, hefailed to take any steps to do so. Defendant's deposition of Plaintiff'sexpert and inquiry into his opinions doesnot preclude Defendant f romchallenging the expertise of the witnessat trial. Plaintiff failed to meet its

burden of establishing the qualificationsof the witness as an expert.

5. Specific Expertise Attack A better tack onthe challenge is to try to question whether theexpert can withstand an attack along the linesof Broders v. Heise or Gammill v. JackWilliams Chevrolet and challenge the expertas "lacking the special knowledge as to thevery matter on which he proposed to give anopinion." Broders, 924 S.W.2d at 153;Gammill, 972 S.W.2d at 719. Contrast theexperience of the challenged expert with thatof your own expert (who presumably has thequalifications to highlight the shortcomingsof the other side's expert. cf: Sivas v. Ghiatas954 S.W.2d 50 (Tex. App. - San Antonio1997, pet. denied).

D. Making a Daubert/Robinson Challenge -

Attacking the Message 1. Daubert/Robinson challenge speaks to the

unreliability of the expert’s evidence whenanalyzed under the factors laid out in thedecisions. Such a challenge is not concernedwith the qualifications of the expert, only theadmissibility of the proffered testimony. Your motion should contain three essentials:

a) The factual basis for the motion, layingout the testimony being offered and themethods by which it was derived,making a considerable effort toforeshadow those areas which youbelieve fall short of the Daubert orRobinson guidelines.

b) The legal basis for your motion, listingthe Daubert or Robinson factors to beconsidered by the trial judge in makingthe preliminary determination ofadmissibility.

c) An application of the Daubert/Robinsoncriteria to the testimony of thechallenged witness, explaining why thestandards of reliability are not met as acondition of admissibility. See Fed. R.Evid. 104(a)" In re "Agent Orange"Product Liability Litigation, 611F.Supp. 1223, 1245 (E.D.N.Y. 1985).

E. Third Line of Defense: Limiting Instructions

If the Court either strikes or upholds the witnessas a qualified expert, request a limiting instructionunder Tex. R. Civ. Evid. 105 restricting testimony tothose issues. This will prevent the other side from

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taking liberties with the demonstrated limited expertiseof the witness. A proper request for a limitinginstruction must be granted, and the jury must beinstructed accordingly. However, failure to request alimiting instruction is fatal; the party may not appealthe court's failure to limit the testimony sua sponte. Tex. R. Civ. Evid. 105. F. Specific Areas of Qualification

The review by a trial court of an expert'squalifications takes place on a case by case basis and issubject to an abuse of discretion standard of review. The following are qualification standards for variousexperts.

a. Police Officers and Accident Analysts. As ageneral rule, a police officer is not qualifiedto render an expert opinion regarding anaccident based upon his position alone. Pylev. Southern Pacific Transportation Co., 774S.W.2d 693, 695 (Tex. App.--Houston [1stDist.] 1989, writ denied). Accident analystsand reconstruction experts may be qualifiedto testify as to causes of accidents if they arehighly trained in the science of which theytestify. Clark v. Cotten, 573 S.W.2d 886,887 (Tex. App.--Beaumont 1978, writ ref'dn.r.e.); Texaco v. Romine, 536 S.W.2d 253,256-57 (Tex. App.--El Paso 1976, writ ref'dn.r.e.); Accord Hooper v. Torres, 790S.W.2d 757, 759 (Tex. App.--El Paso 1990,writ denied).

b. Physicians. Tex. Rev. Civ. Stat. Ann. art.4590i sec. 14.01(a)(1) requires that "in a suitinvolving a health care liability claim againsta physician for injury to or death of a patient,a person may qualify as an expert witness onthe issue of whether the physician departedfrom accepted standards of medical care onlyif the person is practicing at the time suchtestimony is given or was practicing at thetime the claim arose and has knowledge ofaccepted standards of medical care for thediagnosis, care, or treatment of the illness,injury, or condition involved in the claim." Additionally, sec. 14.01(a)(3) requires thatthe expert must be "qualified on the basis oftraining or experience... ."

To determine whether a witness isqualified, the court will look to two factors,as laid out in sec. 14.01(c). First, whether thewitness is board certified or "has othersubstantial training or experience in an areaof medical practice relevant to the claim",and second, whether the witness "is actively

practicing medicine in rendering medicalcare services relevant to the claim." Somecertifying organizations such as theAmerican College of Emergency Physicianshave internal standards for qualifications ofexperts and provide valuable tools forchallenging the expert. Specific examplesfrom the case law are as follows: i. Tanner v. Westbrook, 174 F.3d 542 (5th

Cir. 1999). Obstetrician held notqualified to testify as to producing cause- lack of specific expertise.

ii. JC Penney Life Insurance Co., v. Baker,33 S.W.3d 417 (Tex.App.-Fort Worth2000, n.w.h.). Pathologist not necessaryto testify about cause of death. Internistheld qualified to testify as to cause ofdeath where he regularly treated patientswith cardiac problems and knew theeffects of cardiac disease.

iii. Helena Chemical Co. v. Wilkins, 18S.W.3d 744 (Tex.App.-San Antonio2000, n.w.h). A proferred expert neednot be certified in the particularspecialty at issue to be qualified totestify if his expertise intertwines withthe facts at issue. Pertinent inquiriesinclude the ability of the profferedexpert to conduct research, gatherinformation, and assimilate the data in ameaningful manner with regards to thefacts in issue.

iv. Broders v. Heise, 924 S.W.2d 148 (Tex.1996). Emergency room physiciancould not testify re: the standard of carefor neurosurgeon.

v. Hernandez v. Altenberg, 904 S.W.2d734 (Tex.App.-San Antonio 1995, nowrit). Anesthesiologist allowed totestify as to cause of death from bloodclot forming on a guide wire left insidean a r t e r y a f t e r an g i op l a s t y . Anesthesiologist that qualified becausehe regularly inserts catheters, and eventhough they were generally of adifferent type, the underlying principleswere the same.

vi. Silvas v. Ghiatas, 954 S.W.2d 50(Tex.App.-San Antonio 1997, writdenied). Orthopedic surgeon qualifiedto render expert opinion regardingradiologist's interpretation of x-rays -intertwined specialties.

vii. Blan v. Ali, 7 S.W.3d 741 (Tex.App.-Houston [14th Dist.] 1999, no writ).

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Neurologist allowed to testify against acardiologist and an emergency roomphysician where well versed in thetreatment of the condition at issue -stroke.

viii. Garza v. Keilor, 623 S.W.2d 669, 671(Tex.App.-Houst. [14th Dist.] 1981, writref'd n.r.e.). Internist qualified to testifyagainst orthopedic surgeons on thestandard of care for treating infectionsas the infectious process is common inall fields of medicine.

ix. Hersh v. Hendley, 626 S.W.2d 151(Tex.App.-Fort Worth 1981, no writ). Internist and orthopedic surgeonallowed to testify against podiatristregarding the standard of care for takinga medical history and discharging apatient.

x. Sears v. Cooper, 574 S.W.2d 612, 615(Tex.Civ.App.-Houston [14th Dist.]1978, writ ref'd n.r.e.). Pathologistallowed to testify against a generalpractitioner regarding the standard ofcare for taking a medical history anddischarging a patient.

xi. Simpson v. Glenn, 537 S.W.2d 114, 115(Tex.Civ.App.-Amarillo 1976, writ ref'dn.r.e.). General surgeon allowed totestify against obstetrician/gynecologistregarding the standard of care in treatinga postoperative electrolyte imbalance.

c. Economists. As with any other expert, aneconomist must be shown to have specialknowledge which jurors do not possess inorder to offer expert testimony. Specificexamples are as follows:

i. Celotex Corp. v. Tate, 797 S.W.2d 197,202 (Tex. App.--Corpus Christi 1990,no writ). An economist may testifyabout the relative impact variouspunitive damage amounts might have ona Defendant based on financialinformation about the company. Furthermore, an economist can presenttestimony about how to compute thepresent value of damages based onhypothetical figures, however, he cannotpresent damage calculations forintangibles such as guidance andcounsel because he does not possess anyspecial knowledge on this subject thatthe jurors do not already have.

ii. Seale v. Winn Exploration Company,Inc., 732 S.W.2d 667 (Tex.App.-CorpusChristi 1987, writ denied). Economistsought to establish damages for mentalanguish and loss of society by usingpsychiatrist's average hourly rate as abaseline. Testimony held irrelevant -these types of damage necessarilyspeculative and solely within theprovince of the jury.

iii. Lopez v. City Towing Associates, Inc.754 S.W.2d 254 (Tex.App.-San Antonio1988, writ denied). Economist sought totestify regarding damages for loss oflove, affection, companionship andsociety based on a "substitution ofservices theory," considering theaverage income of the clergy,psychologists, social workers andcounselors. Testimony held irrelevant -jury qualified to evaluate these damages.

XIII. PRESERVING ERROR

A. Procedural Considerations Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402

(Tex. 1997) gives us procedural guidelines forpreserving error in a Robinson-type challenge: Theerror must be preserved at the trial court level and maynot be raised for the first time on appeal. Thechallenging party must:

a) make its objection to the reliability of theexpert's opinions prior to trial;

b) raise the issue via Motion in Limine; c) object to the expert's testifying at the time he

is called; and d. obtain a running objection to that line of

testimony.

B. Practical Applications 1. Make a Record

Do not rely solely on your brilliant argument as toan expert's qualifications or methodology.

2. Build Your Evidentiary Record

a. Detailed Affidavits from your own experts,methodically dismantling the challengedexpert's reliability or relevance should beattached to the Motion to Strike. Theseshould be filed at least seven days prior to thehearing on your objection or Motion toStrike. Areas of challenge should point bothto specific deficiencies in the challenged

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expert’s area of expertise as well asdeficiencies in the expert’s training orexperience for things that only “on-the-job”experience can really teach.

b. Supporting Documentation Documents fromprofessional associations and documentsproduced in the case which call into doubtthe experts qualifications or methodologiesshould be introduced into evidence. Learnedtreatises and articles which question themethodology used may also be useful indiscrediting the expert's testimony and hisusefulness to the jury.

c. Live Witnesses(?) Witnesses may be calledlive at a hearing on striking or limiting anexpert's testimony, CAVEAT: Do you reallywant to give your opponent a free shot atcross-examining your witnesses with thejudge listening? CAVEAT REDUX: Do youreally think a judge wants to read yourmotion to strike and listen to live witnesseswhen she can read a good affidavit succinctlypointing out the basis for attacking theproffered expert?

C. Standard of Review: Abuse of Discretion The standard of review for striking an expert or

limiting his testimony is abuse of discretion. Whiletrial courts are given wide latitude in making suchdecisions, the record must contain a factual basis fordisqualifying an expert.

The test for abuse of discretion is not whether, inthe opinion of the reviewing court, the facts present anappropriate case for the trial court's actions. Rather, itis a question of whether the court acted withoutreference to any guiding rules and principles. Downerv. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), citing Craddock v. Sunshine Bus Lines,134 Tex. 388, 133 S.W.2d 124, 126 (1939). Anotherway of stating the test is whether the act was arbitraryor unreasonable. Smithson v. Cessna Aircraft Co., 665S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Ins.Co., 458 S.W.2d 649, 651 (Tex. 1970). IX. EXPERT TESTIMONY AND THE PROBATE

COURT

The following is a list of some of the areas inwhich expert testimony is encountered in the probatecourt.

A. Decedent's Estates 1. Will Contests –

Lack of Testamentary Capacity §57 of the ProbateCode provides the statutory definition of testamentarycapacity. It is essentially a two-part test:

a. Statutory Definition of Capacity The "Status and Age" requirement: the testator

must:

1) have attained eighteen years of age, or 2) be or have been lawfully married, or 3. be a member of the armed forces of the

United States or of the auxiliaries thereof orof the maritime service.

"Sound Mind" requirement: the testator mustpossess:

1) Sufficient ability to understand the businessin which he is engaged;

2) Sufficient ability to understand the effect ofhis act in making the will;

3) The capacity to know the objects of hisbounty;

4) The capacity to understand the general natureand extent of his property; and

5) "memory sufficient to collect in his mind theelements of the business to be transacted, andto hold them long enough to perceive, at leasttheir obvious relation to each other, and to beable to form a reasonable judgment as tothem." Prather v. McClelland, 13 S.W. 543(Tex. 1890).

b. Proper Opinion Testimony is as to Elements of

Capacity, Not Ultimate Issue A witness may not be asked whether a testator had

the mental capacity to make and publish a will becausewhether a person has mental capacity to execute a willis a question of law. A witness may be asked, assuminghe knows or is a properly qualified expert, whether thetestator knew or had the capacity to know the objectsof his bounty, the nature of the transaction in which hewas engaged, the nature and extent of his estate, andsimilar questions. Carr v Radkey, 393 S.W.2d 806 at813 (Tex. 1965), following Brown v. Mitchell, 88 Tex.350, 31 S.W. 621, 36 L.R.A. 64 (1895)

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c. Acceptance of Non-Expert Testimony RegardingCapacity 1) [T]he non-expert witnesses, provided they

know the testatrix and through theiracquaintance had a reasonable opportunity toobserve her acts, conduct and characteristicssufficiently to support an opinion orconclusion, may testify as to the mentalcondition of the testatrix on the occasion inquestion. See: In Re Hardwicks' Estate,278S.W.2d 258 (Tex.Civ.App.--Amarillo 1954,writ ref'd n.r.e.).

2) Lay opinion testimony of witnesses'observations of the testator's conduct, eitherprior or subsequent to the execution of thewill, is admissible to show capacity or thelack thereof. Kenney v. Estate of Kenney,829 S.W.2d 888, 890 (Tex. App.--Dallas1992, no writ)

3) Where a lay witness has sufficientopportunity through personal contacts,conversations, association with andobservation of the person in question toreasonably form an intelligent opinion as tosuch person's sanity, based upon his firsthand knowledge, he is qualified to expresssuch an opinion. Reynolds v. Park, 485S.W.2d 807, 811 (Tex.Civ.App. -- Amarillo1972, writ ref'd n.r.e.). Soto v. Ledezma, 529S.W.2d 847 (Tex. App. - Corpus Christi1975 no writ)

d. Non-Binding Nature of Testimony on Jury The jury as the trier of the facts is the sole judge of

the credibility of the witnesses and the weight to begiven their testimony, not being bound by thetestimony of any one witness, but it is entitled to acceptall, part or none thereof, or it could accept part of thetestimony or part of the testimony of one witness andpart of another, or draw its deductions from all theevidence. Farr v. Bell, 460 S.W.2d 431 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.) Williford v. Masten, 521S.W.2d 878 (Tex. Civ. App. - Amarillo 1975, writref’d n.r.e.)

Witnesses, whether experts or laymen, having firststated their observation or knowledge of the habits,conduct, expressions, peculiarities, disposition, temperor character of the person, in turn may give theiropinions as to his sanity. Campbell v. Campbell, 215S.W. 134 (Tex.Civ.App., 1919, writ refused).

2. Will Contests: Undue Influence - a. Elements of Proof

Undue influence implies the existence oftestamentary capacity in the testator that was subjectedto and controlled by a dominant power or influence.Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963); Green v. Earnest, 840 S.W.2d 119, 121(Tex.App.--El Paso 1992, writ denied). Before a willmay be set aside on the ground of undue influence, thecontestant must prove:

1) the existence and exertion of an influence; 2) the effective use of that influence to subvert

or overpower the mind of the testator at thetime the will was executed; and

4. the execution of a will which the testatorwould not have executed but for suchinfluence. Rothermel, 369 S.W.2d at 922;Green, 840 S.W.2d at 121. Estate ofLivingston v. Nacim, 999 S.W.2d 874 (Tex.App. El Paso 1999, no pet. h.)

b. Burden of Proof/Circumstantial Evidence The opponent of a will has the burden of proving

the existence of undue influence. Understandably, theexercise of undue influence is rarely done out in theopen. Circumstantial evidence must often be reliedupon to establish the elements of the cause of action. Itis a very high burden.

As perhaps most eloquently described in Hyatt v.Wroten: 184 Ark. 847, 43 S.W.2d 726 (Ark. 1931):Undue influence is generally difficult of direct proof. Itis generally exercised in secret, not openly, and, like asnake crawling upon a rock, it leaves no track behindit, but its sinister and insidious effect must bedetermined from facts and circumstances surroundingthe testator, his physical and mental condition asshown by the evidence, and the opportunity of thebeneficiary of the influenced bequest to mold the mindof the testator to suit his or her purposes.

Factors to considered include the physical andmental condition of testator at time of execution; age,weakness, or infirmity as relevant factors beconsidered in determining whether undue influenceexisted at the time the will was executed. Lowery v.Saunders, 666 S.W.2d 226, 234 (Tex. App.--SanAntonio 1984, writ ref'd n.r.e.); In re Olsson's Estate,344 S.W.2d 171, 174 (Tex. Civ. App.--El Paso 1961,writ ref'd n.r.e.); Watson v. Dingler, 831 S.W.2d 834(Tex. App.--Houston [14th Dist.] 1992, writ denied).

Some of these will lend themselves more to experttestimony than others.

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3. Will Contests: Handwriting a. Lay Opinion Testimony Admissible

The determination of whether the holographic willwas in the handwriting of the decedent is a question offact upon which the factfinder may be guided by hisown examination and by that of the testimony of non-expert witnesses familiar with the alleged testator andhis handwriting. See In re Mateer's Estate, 296 S.W.2d907 (Tex. Civ. App.--Texarkana 1927, writ ref'd).quoted in Est of Johnson 886 S.W.2d 869 (Tex. App. -Beaumont, 1994, n.w.h.)

b. Expert Testimony Acceptable 1. Comparative samples of handwriting - Nass

v. Nass, 149 Tex. 41; 228 S.W.2d 130 (Tex.1950)

2. Pages exchanged in will by Testator - Mahanv. Dovers, 730 S.W.2d 467 (Tex. App. - Ft.Worth 1987, n.w.h.)

3. Handwriting expert not qualified to giveopinion as to alcohol-related incapacity Warren v. Hartnett, 561 S.W.2d 860 (Tex.App. - Dallas 1977, writ ref’d n.r.e.)

4. Forged signature- Estate of Livingston v.Nacim 999 S.W.2d 874 (Tex. App.- El Paso,1999, no pet. h.) Handwriting ExpertAppointed on Court's Motion - Expensessplit by parties.

4. Will Contests: Revocation a. Methods of Revocation

A will may be revoked only by (i) a subsequentwriting, (ii) a physical act, or (iii) operation of law. Noother method of revocation is valid. Goode v. Estate ofHoover, 828 S.W.2d 558, 559 (Tex. App.--El Paso1992, writ denied).

b. Intent to Revoke An intent to revoke must exist for a will to be

revoked under the first two methods. Therefore, lackof testamentary capacity or intent or the existence offraud or undue influence will invalidate the"revocation." Estate of Plohberger, 761 S.W.2d 448(Tex. App.--Corpus Christi 1988, writ denied);BAILEY, TEXAS PRACTICE - LAW OF WILLS §513 (1968). 5. Fiduciary Duty?

No Experts, Please While some cases havesuggested that the existence of a fiduciary relationshipbetween the testator and the executor or beneficiariesunder a purported will may raise a presumption ofundue influence, (Spillman v. Estate of Spillman, 587S.W.2d 170, 172 (Tex. Civ. App.--Dallas 1979, writref'd n.r.e.); see 9 BAILEY, TEXAS PRACTICE--

WILLS § 196 (1968); contra: Dailey v. Wheat, 681S.W.2d 747 (Tex. App.--Houston [14th Dist.] 1984,writ ref'd n.r.e.)) nevertheless, this is a question of lawand therefore not a permissible area of testimony for anexpert. Askanase v. Fatjo, 130 F.3d 657, 673 (5 Cir.th

1998). B. Guardianships 1. Contractual Capacity to Retain

Counsel Should a proposed ward seek to retainprivate counsel after the court has appointed anAttorney Ad Litem, the ad litem may properlychallenge the retention of the retained counsel througha Motion to Show Authority pursuant to Rule 12 of theTexas Rules of Civil Procedure. During the hearing, itwill be necessary to determine whether the proposedward in fact has sufficient capacity to hire counsel sothat retained counsel can in fact show authority at thattime. Logan v. McDaniel, 21 S.W.3d 683; 2000 Tex.App. Austin 2000 (pet. denied)

CAVEAT: The privately-retained attorneyaccepts the employment at his or her own risk. Anattorney retained by a ward who had been adjudicatedto be of unsound mind could not recover fees for legalservices in a guardianship contest. Breaux v. AlliedBank of Texas, 699 S.W.2d 599 (Tex. App.-Houston[14th Dist.] 1985, writ ref'd n.r.e.), cert. denied, 479U.S. 1002 (1986).

2. Selecting Medical Experts Because medical testimony is statutorily required

in guardianship proceedings, it would behoove thepracticioner to be quite careful in selecting a medicalexpert to examine a proposed ward and to provideexpert testimony. Gerontologists, geriatricpsychiatrists and neurologists generally make betterwitnesses than internists or general practicioners asthey are able to rely on and testify to commonly usedtests in the psychiatric area and their specializedknowledge.

3. Doctor's Letter The medical testimony is supplied primarily

through the doctor's letter. The court may not grant aguardianship application unless a written letter orcertificate from a licensed physician is obtained whichstates that, in the opinion of the physician, theproposed ward is incapacitated and which generallydescribes the extent of incapacity. Probate Code §687.

4. Court-Ordered Medical Examination When the proposed ward refuses to submit to a

voluntary medical examination, it is necessary for acourt-ordered examination. Upon the filing of anapplication for a court-ordered examination to

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determine capacity, the applicant must give theproposed ward and the attorney ad litem at least 4 daysprior notice of the hearing on the application. ProbateCode §687(b)

Do not confuse the mechanism for a court-orderedmedical examination under §687 with the procedurepursuant to TRCP 204, which provides for mentalexaminations by a physician or psychologist, but only"for good cause shown." Where a statutory provisionis set forth, it controls over a purely proceduralprovision. Cf: Probate Code §22 and TRCP 200regarding Depositions on Written Questions.

5. Payment Payment for court-ordered mental examinations

should be taxed as costs in the case. §688 provides forthe payment of attorneys, mental health professionalsand interpreters appointed under Code 686 and 687.

6. Confidentiality of Mental Exam (The "MedicalMiranda") A. Communications between a patient and a

professional are confidential and shall not bedisclosed. Rule 510, Texas Rules of CivilEvidence. Further, the records of theidentity, diagnosis, or evaluation of treatmentof a patient in mental health situations or alsoconfidential and shall not be disclosed.

B. An exception exists when communicationsare made to a professional in the course of acourt-ordered examination relating to thepatient's mental or emotional condition ordisorder. But the exception only applies ifthe court finds that the patient was informedthat communications to the professionalwould not be privileged. Rule 510(d)(4),Texas Rules of Civil Evidence.

C. Mental Commitments 1. Elements for Civil Commitment

To determine that a proposed patient requirescourt-ordered mental health services, the court or jurymust find from clear and convincing evidence that

1) the proposed patient is mentally ill and, 2) as a result of that illness is

A) likely to cause serious harm to himself, B) likely to cause serious harm to others, or

C) will, if not treated, continue to suffersevere and abnormal mental, emotional,or physical distress, will continue toexperience deterioration of his ability tofunction independently, and is unable to

make a rational and informed decisionas to whether or not to submit totreatment. TEX. HEALTH & SAFETYCODE ANN §574.034(a) (Vernon1992). The judge or jury must specifywhich criterion forms the basis forordering temporary mental healthservices. Id. §574.034(b).

2. Expert Testimony Required To meet the clear and convincing evidence

standard, the evidence must include expert testimonyand, unless waived, evidence of a recent overt act or acontinuing pattern of behavior that tends to confirm thelikelihood of serious harm to the proposed patient orothers or the proposed patient's distress and thedeterioration of ability to function. TEX. HEALTH &SAFETY CODE ANN §§574.034, 574.034(c). D. Legitimation and Heirship 1. Heirship

Heirship and Determination of Heirship is coveredunder §§37 to 56 of the Probate Code. Although §53is entitled “Evidence,” there is actually no guidance inthe Probate Code, leaving the matter of evidentiarystandards within the discretion of the court.Presumably, this would be a preponderance of theevidence standard.

2. Legitimization a. Paternity v. Legitimization

Paternity is the process of legally determining,during the lifetime of the father, who the father of achild is in the family courts. Legitimization is thesame process, only after the death of the alleged fatherand in the probate courts.

b. Creature of Statute Legitimatization is a creature of statute. Manuel v.

Spector, 712 S.W.2d 219 (Tex. App. – Amarillo, 1996,no pet.); Death of Putative Father as PrecludingAction for Determination of Paternity or for ChildSupport, 58 A.L.R.3rd 188 (1974)

c. Liberally Construed Although the common law rule of "statutes in

derogation of the common law must be strictlyconstrued" has been abrogated in Texas. Thelegislature directs that such statutes should be liberallyinterpreted to achieve their purpose and promotejustice. Manuel v. Spector, supra. As a result, socialand remedial legislation will be liberally construed toeffectuate its purpose. Id.; Braugh v. Corpus ChristiBank & Trust, 605 S.W.2d 691, 696 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.); Texas

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Employment Commission v. Ryan, 481 S.W.2d 172(Tex.Civ.App.--Texarkana 1972, no writ); Tex.Gov'tCode Ann. § 312.006

d. Modern Trend The trend in modern law is to accord children born

out of wedlock the same legal status as other children.Manuel, 712 S.W.2d at 222. See also Trimble v.Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31(1977); Weber v. Aetna Casualty & Surety Co., 406U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Glonav. American Guarantee & Liability Insurance Co., 391U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

e. Exclusive Means Probate Code §42(b) provides the exclusive means

by which an illegitimate child may be legitimized andinherit from his or her father. Any one or more of thefive methods provided for may be followed. Themethods by which an illegitimate child may inherit are:

1) a presumption of paternity under section160.201, Family Code;

2) an adjudication under Family Code Chapter160 that the child is the child of the father;

3) an adoption of the child by the father; 4) the execution of An acknowledgment of

paternity by the father under Subchapter D,Chapter 160, Family Code;

5) a determination by the probate court uponpetition by the child and by clear andconvincing evidence that the purported fatherwas the biological father of the child.

f. Evidentiary Standard §42(b) further provides that: A person claiming to

be a biological child of the decedent, who is nototherwise presumed to be a child of the decedent, maypetition the probate court for a determination of rightof inheritance. If the court finds by clear andconvincing evidence that the purported father was thebiological father of the child, the child is treated as anyother child of the decedent for the purpose ofinheritance.

g. Expert Testimony or Not? Like many other areas of probate, expert testimony

can often be helpful, but not required. However, withthe advent of DNA testing, we are somewhat on thehorns of a dilemma in heirship determination. UnderFamily Code Chapter 160, court-ordered DNA testingis self –authenticating. This is so because the statutespecifically makes it so. However, if DNA evidence issought to be introduced in an heirship proceeding, as

scientific expert evidence, the test results alone are notcompelling (as under the Family Code) or evenadmissible, without expert testimony to interpret theresults of the tests. Grogan v. Barker, #2-00-286-CV(Tex. App. – Fort Worth, 2001) (Unpublished Opinion)

3. Cases a. Malone v. Thomas 24 S.W.3d 412 (Tex.

App.-Houston [1st] 2000, no pet.) May 18,2000 Legitimation proven by 1) father’sconsent to be named on claimant’s birthcertificate. This qualifies as a presumption ofpaternity under §151.002 of the FamilyCode; 2) father executed a statement ofpaternity under Family Code section160.202.

b. In the Interest of A. S. L., 923 S.W.2d 814,Tex. App. – Amarillo, 1996, no pet. hist.) Land mark case to establish that an action toestablish paternity of an illegitimate childmay be brought after the death of the allegedfather. Based on non-expert, anecdotal anddocumentary evidence on a clear andconvincing standard.

c. In re: Chavana, 993 S.W.2d 311 (Civ. App.San Antonio, 1999, no writ) Non-expert,anecdotal and documentary evidence used toestablish heirship. A “second bite at theapple” case. The claimants were barred fromestablishing paternity under the Family Code,but still had the right to seek to determineheirship under the Probate Code. This rightcould not be asserted any earlier than it was,because heirship can only be determined afterdeath. The action must be brought at the timeof probate and not earlier.

d. In the Interest of J.W.T., 945 S.W.2d 911(Tex. App.--Beaumont, 1997, no writ) “Aproperly conducted blood test positivelyexcluding the alleged father is clear andconvincing evidence of non-paternity.”

e. In the Matter of J.A.M., 945 S.W.2d 320(Tex. App.--San Antonio, 1996, no writ)

1) Two DNA blood tests showed that thealleged father was not excluded frombeing the father and that at least 99% ofthe male population is excluded.

2) The Family Code specifically makesverified paternity testing reportsadmissib le even wi thou t theestablishment of the business recordsexception.

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3) §160.110(b) of the Family Codeprovides that if the DNA tests show thepossibility of an alleged father'spaternity and that at least 99 percent ofthe male population is excluded fromthe possibility of being the father, that isa prima facie evidence or a rebuttablepresumption of paternity.

4) The prima facie case established by thetests shifts the burden to the opposingparty to disprove paternity or effectivelycreates a presumption of paternity and issufficient to support a summaryjudgment unless the opposing party hasproduced enough clear and convincingevidence to rebut it.

f. Villery v. Solomon, 16 S.W.3d 106 (Tex.App. - Houston [1st] 2000, no pet. h.)

1) A report of DNA tests was admittedover objection, but because the reportwas ambiguous and there was no experttestimony to support or interpret the test,the court would make no assumptionsfrom the report.

2) The trier of fact is the sole judge of thecredibility of the witnesses and theweight to be given to the testimony.Because the results of the DNA testswere ambiguous and not conclusive, thereviewing court found the trial court didnot err in refusing to make anyassumptions based on the DNA report.

E. Gender Determination

Littleton v. Prange, 9 S.W.3d 223 (Tex.App.—San Antonio 1999, pet. denied) WrongfulDeath claimant's status as surviving spouse challengedby medical malpractice defendant. Claimant hadundergone sex reassignment surgery. Biological andgenetic testing evidence used F. Administration Issues

1. Condemnation (land use planning expert)Butler v. State 973 S.W.2d 749 Civ. App.(Austin 1998) no pet.

2. Suit over Creditor's Claim - underlyingdocuments found to be forged (Moneyloaned was ostensibly for a South Americandrug deal) Dodd v. Harper 670 S.W.2d 646(Tex. App. - Beaumont 1983, no writ)

3. Suit against accounting firm breach offiduciary duty, tortious interference withinheritance rights, actual or constructive

fraud", negligence, gross negligence, DTPAviolations, civil conspiracy, and negligentmisrepresentation. - expert testimonyaccepted regarding duties of accountants;Thompson v. DeLoitte & Touche, L.L.P. 902S.W.2d 13; (Tex. App. - Houston [1 Dist.]st

1995, no pet. h.) 4. Escheat of Mineral Royalties (Expert

Genealogist) In Re: Torrance 991 S.W.2d 98(Civ. App. - El Paso, 1999, no pet. h.)

5. Tortious Interference with Inheritance Rights(handwriting experts) King v. Acker, 725S.W.2d 750 (Tex. App. Houston 1 1987,n ost

writ)

G. Attorney's Fees Basic Premise Absent specific statutory authorization, the

probate court cannot award attorney's fees.

1. Entitlement to Attorney's Fees: Will Contest §243 of the Texas Probate Code allows reasonable

attorney's fees and expenses in offering or defending awill or an alleged will, but only to 1) a persondesignated as executor or administrator with willannexed, or 2) a person designated as a devisee,legatee, or beneficiary and provided they are found tohave defended or prosecuted any proceeding in goodfaith, and with just cause, whether successful or not.Zapalac v. Cain. 39 S.W.3d 414 (Tex.App.-Houston[1st Dist.] 2001, no pet. h.)

2. Entitlement to Attorney's Fees: GuardianshipContest §665B of the Texas Probate Code allows a) A successful contestant in a guardianship

proceeding is entitled to attorney's fees if thecontestant is appointed guardian as a result ofthe contest. Carney v. Aicklen, 587 S. W. 2d507, (Tex. Civ. App.-Tyler, 1979, writ ref'dn.r.e)

b) An unsuccessful contestant to a guardianshipproceeding may not receive attorney's feesabsent a finding by the court that the attorneyhas acted in good faith and for just cause inthe attorney's representation of the personcontesting the successful application. TEX.PROB. CODE ANN. §665B

3. Sine Qua Non: Expert Testimony onReasonableness Expert testimony is required to support an award

of attorney's fees. Barrett v. Parchman, 675 S.W.2d289, 291 (Tex. App.--Dallas 1984, no writ). In Barrett,even though the client, a temporary administratrix,testified regarding the nature of the attorney's services;

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no testimony was offered by an attorney regarding thereasonableness and necessity of the services performedor the reasonableness of the amount requested. Evenin a non-jury trial, evidence must be presented on theseissues to support an award of attorney's fees. Becausethe temporary administratrix introduced no probativeevidence as to the reasonableness and necessity of theservices rendered or the reasonableness of the amountrequested, the court concluded that the evidence didnot support the award of attorney's fees. Barrett, 675S.W.2d at 291-92. See also Price v. Estate ofSchwartz, 711 S.W.2d 700, (Tex. App. - CorpusChristi, 1986 no writ) (Suit to Remove Executor); Moore v. First City Bank, 707 S.W.2d 286 (Tex. App. -Ft. Worth 1986, no writ) (Suit to Remove Guardian);Paulus v. Lawyers Surety, 625 S.W.2d 843 (Tex. App.- Houston [14 Dist.] 1981, writ ref’d, n.r.e.) (Showth

Cause Against Temporary Administratrix and Surety).

4. What is Reasonable? In determining reasonableness of the fees sought,

the court is to consider the standard “ABA criteria”:

a) The time and labor required, b) the difficulty of the questions involved, c) the skill required to perform the tasks, d) The fee customarily charged for similar

services; e) The value of the property recovered; f) The experience and ability of the attorney;

and g) The benefits to the estate.

5. Sine Qua Non(2): Adequate Documentation a) "[A] guardian is entitled to be reimbursed

from the guardianship estate for all necessaryand reasonable expenses incurred inperforming any duty as a guardian." Tex.Prob. Code Ann. §666 Vorwerk v. Matyastik,23 S.W.3d 48 (Tex. App. - Austin, 2000, petdenied)

b) Attorney's fees incurred by a guardian maybe a necessary and reasonable expenseincurred by the guardian in executing hisduties as a guardian. See Texas Dep't ofMental Health & Mental Retardation v.Ellison, 914 S.W.2d 679, 683 (Tex. App.--Austin 1996, no writ).

c) "[A]ll expenses charged shall be: (1) inwriting, showing specifically each item ofexpense and the date of the expense; (2)verified by affidavit of the guardian; (3) filedwith the clerk and entered on the claimdocket; and (4) acted on by the court in thesame manner as other claims against the

guardianship estate." Tex. Prob. Code Ann. §667

d) An award of attorney's fees should includethe hourly rate and the hours expended.Central Tex. Micrographics v. Leal, 908S.W.2d 292, 299 (Tex. App.--San Antonio1995, no writ).

e) Determining a reasonable attorney's fee is aquestion of fact and the fee award must besupported by competent evidence. Brown &Root U.S.A., Inc. v. Trevino, 802 S.W.2d 13,14-15 (Tex. App.--El Paso 1990, no writ)(citing Great Am. Reserve Ins. Co. v. Britton,406 S.W.2d 901, 907 (Tex. 1966)). A courtdoes not have authority to adjudicate thereasonableness of attorney's fees on judicialknowledge without the benefit of evidence. Brown & Root, 802 S.W.2d at 15; but seeTex. Civ. Prac. & Rem. Code Ann. §38.003(West 1997) If the evidence is factuallyinsufficient to support the award, the casemust be reversed. Brown & Root, 802S.W.2d at 16. When no evidence orinsufficient evidence supports an award, thecourt abuses its discretion in making theaward. Id.

f) A layman's unsupported assertion regardingreasonableness and necessity for attorney'sfees does not support the payment ofattorney's fees from the estate. Woollett,supra; Barrett, 675 S.W.2d at 291-92.

6. Discovery Considerations Regarding Attorney'sFees – Where, in answers to interrogatories, a party fails

to designate an expert regarding "reasonable andnecessary attorney's fees," the expert is precluded fromtestifying. E.F. Hutton v. Youngblood, 741 S.W.2d363 (Tex. 1987). H. Commissions

A. Compensation Above the Statutory Formula If the statutory formula is unreasonably low,the court may authorize reasonable additionalcompensation.TEX. PROB. CODE ANN. §665

B. The court may now review the amount of thecompensation (under the 5 & 5 rule) on itsown motion or on the motion of an interestedperson, and may increase the amount if thecourt finds that the amount is unreasonablylow considering the services rendered by theguardian or temporary guardian of the estate.

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C. Attorneys serving as guardians of the estatewill no longer be able to simply charge theirhourly rates as compensation. The fact thatcompensation under the "5 & 5 rule" is lessthan the guardian's usual or customarycharges (hourly rate) is not enough toestablish a finding of unreasonably lowcompensation.

D. Also, proof that the "5-and-5" compensationis unreasonably low will have to meet theclear and convincing evidence standard.

X. A BIBLIOGRAPHICAL NOTE:

This outline would be incomplete andintellectually dishonest if I did not acknowledge thefollowing authors and their outlines that have been agreat help to me in preparing this paper and helping meto distill my thoughts in this field. I commend thesewriotings to the reader. Bland, Hon. Jane, EXPERTWITNESSES FROM A JUDGE’S PERSPECTIVE:WHEN TO USE THEM, WHEN NOT TO USETHEM, HOW TO QUALIFY THEM AND WHATTHE JURY SAYS ABOUT THEM, Advanced ExpertWitness Course 2001, State Bar of Texas; Fraley,Elizabeth M. and Wormington, Maria L.,CHALLENGING EXPERT WITNESES, University ofHouston School of Law; Gonzalez, Shewrry R. andMoore, Joyce W., THE EXPERT WITNESS INPROBATE AND TRUST LITIGATION, 24th

Advanced Estate Planning and Probate Course (2000),State Bart of Texas; McGrath, Hon. Bob, TEXASJUDGES GET EVEN TALLER AND BETTERLOOKING, Advanced Personal Injury Law Course2000, State Bar of Texas

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