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training and experience than you do. To make matters worse, many judges will put off the
case for an extended period-of-time, while deciding if you can testify as an expert. That time is
valuable, and often asked for by the opposing council because it is valuable in extending his or
her own case preparation. If the opposing council feels that you are unqualified based on your
methods and science relied upon, he can motion the court to restrict your testimony. Often
this will result in settlement agreements. The Daubert Challenge is further favorable to the
opposing attorney because it gives him/her an advanced preview of the sciences and
methodology you used in finding opinions and conclusions. The attorney is most likely mute or
ignorant about what you know and about your profession, they are after all, in my opinion, like
actors playing a part in a movie being watched by their client and the jury. The challenge gives
them that edge to plan further for their rebuttal and cross examinations and closing
arguments.

Surviving these challenges is not difficult if you take some damage control steps in advance of
going to trial. I recommend putting together a portfolio that has your full resume, copies of
training certificates and diplomas, for every course that you have taken. Supplement that with
letters of recommendation and appreciation and commendation, awards, college transcripts,
proof of military service (DD214) listing of trade and technical schools and their course subject
matter and if possible news articles or other documents that will support your training and ex-
perience. In advance of trial, supplement your case notes with when and where and by whom,
you were trained or experienced, for each event that will require your testimony. As example; if
you are going to testify that a vessel master was responsible for not taking alerting and evasion
action to avoid a collision at night, on the high seas, that resulted in the deaths of three
passengers, because he failed to recognize that a red and green light, seen together, was
indicative of a vessel approaching his, that it was on a collision course. You should be ready to
document when and where and by whom you learned that information from, because you will
likely be asked that question.

There is yet another black cloud that travels along with this nightmare. You, the investigator,
who was paid by a client to investigate his case, himself believing before employing you that
you had the credentials to do the job for him, could be sued if you fail the Daubert Challenge.
Your failure could mean the failure of his case. This could open you up to a host of liabilities
like being sued for false advertising because you don’t have the training and or experience to
perform what you say in your advertising that you can do. You may be sued for whatever the
loss your client suffers from losing his case to the other party, for attorney fees, court costs
and in some cases punitive damages. The answer to this is: do not advertise that you can do
something unless you can prove to a “Gatekeeper” that you have the training and or
experience to do it. Some states like California and Nevada, and many others, authorize their
private investigator licensees to advertise and accept various investigative work, whether-or-
not they have the documented training or experience to do the job. In this instance they are
protected from criminal liability but not immune to civil liability that may arise out of a Daubert
Challenge. My closing suggestions to each of you is to train as often as you can in your
profession and in any associated disciplines. Maintain your training records.

The author is not an attorney and presents only his understanding of this subject matter, given to
you in good faith. Anyone seeking legal advice or clarification of this article are encouraged to seek
the advice and council of a licensed attorney. Additional information about the author can be
found on his company (Tri State Detectives) Las Vegas web site;
http://www.tristateinvestigators.com or you can e-mail him directly at jtbornpi@att.net. To
learn more about investigations and associated disciplines, the author has published five
books, his most recent, a full color hard covered, 370 page text book entitled “Investigator’s
Manual, A Field Guidebook” by James T. Born, Author House Publishing Company, ISBN 978-1-
5462-6085-1 available at Amazon, the internet or any book store.

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