I was pleased to be asked to speak at the recent INBLF Litigation Fly-In in Chicago about the strategic use of pretrial motions. The Fly-In brought in litigators from across the country (and from Canada) on a variety of topics. My presentation was titled, “Pretrial Motions: They Can Set You Up to Win Your Case, But What Are the Downsides?”

What Is a Pretrial Motion?

As we know, a pretrial motion is a request to the court made by either side on a particular issue before the start of the trial. The motions vary and include motions to dismiss, to suppress, to discover, to exclude evidence, for summary judgment or for any other preliminary matter better resolved before trial. Attorneys practicing in the U.S. Court of Federal Claims must be conversant with all forms of pretrial motions, and the rules that govern them.

The Court of Federal Claims and Pretrial Motions

There are no jury trials in the U.S. Court of Federal Claims; all cases are heard by a single judge. In our experience, most Court of Federal Claims judges are reluctant to grant a preliminary motion to exclude the testimony of any witness, particularly an expert witness before trial. Except where an expert is clearly unqualified or plans to offer opinion testimony beyond the scope of his or her area of expertise or is otherwise barred by prior rulings, most judges say that they will decide for themselves how much weight to give to the testimony during trial. And CFC judges are adept at ruling on evidentiary objections as a trial proceeds.

Similarly, where a motion for summary judgment is a question of law in a bench trial, but the facts are hotly disputed, as they often are in takings cases, arguments advanced to support a pretrial liability or legal ruling are better left for consideration after a trial.

Expert Witness Selection and Daubert Motions

That being said, in takings cases, expert witness testimony is often key to success. Selecting a well-qualified expert witness who can explain his or her methodology and meet the other Daubert and Federal Rule of Evidence 702 requirements is therefore crucially important.

Because Daubert motions are such powerful litigation tools because they can result in the barring of an expert from offering all or some of the proposed opinion testimony, these motions should be used carefully and strategically. One finding of the report “Timing and Disposition of Daubert Motions in Federal District Courts: An Empirical Examination” (Searle Civil Justice Institute, 2015) is:

“Over the entire sample, 47 percent of Daubert motions result in some sort of limitation on expert testimony.”