Arbitration can reduce your client’s cost of expert testimony, without compromising your ability to argue the case. Arbitration has significant advantages over litigation when expert testimony is critical to your case. First, the parties can choose a decision maker who is an expert in the field (such as a Ph.D. biochemist) or has familiarity with the field (such as an intellectual property lawyer). Second, they can design a process for introducing expert testimony that will ensure its admissibility while reducing its cost. After briefly reviewing the constraints imposed by Kumho and its predecessor Daubert v. Merrell Dow Pharmaceuticals,1 we can examine these advantages in greater detail.

II. The Legal Setting

In Daubert the Supreme Court specified the “gatekeeping” role it expected federal judges to perform before admitting an expert opinion based on scientific knowledge. It assigned judges the task of conducting a two-part analysis. First, the court must decide the validity of the methodology the expert used in reaching an opinion. Second, the court must decide whether the opinion testimony is relevant to the argument and would therefore assist the trier of fact.