The Best Way to Rebut a Rebuttal

TASA ID: 2016

Have you noticed that most rebuttal reports start with the phrase, “This research is fatally flawed?” Whether that is true or not, experts tend to use that phrase quite liberally without paying too much attention to the supporting evidence.

When rebutting a survey that has been submitted in evidence, one should ask two questions: (1) Has the researcher adhered to the fundamental scientific principles governing the design and execution of survey research; and (2) Has he or she gone beyond acceptable and customary design choices? If the rebutter can demonstrate that the researcher has violated fundamental principles, then the “fatally flawed” conclusion is eminently viable.

As to design choices, the rebutter must be careful to distinguish between unacceptable choices—which would automatically fall into the “fundamental principles” category—and choices that might merit mentioning in the report, but which certainly do not qualify as “fatal flaws.”

What can the researcher whose work was criticized unfairly do? In a case in which I was involved five years ago in the Eastern District of Michigan I was fortunate that the client agreed to fund a remake of my original research in which I substituted my original design choices with the rebutter’s recommendations. The rebutting expert in this case was one of the most prominent and well-published members of the profession who had to dig very deeply to find something wrong with my research and ultimately resorted to making indefensible assertions.

As one would expect, the results of the “remake” were identical to the original study proving to the court that design choices that are clearly not intended to sway the results one way or the other are not worthy of the “fatally flawed” label.

When litigating a case in which a rebuttal is proffered, attorneys should be aware of the “fundamental principles vs. design latitude” dichotomy and pursue it at deposition and also, if possible, by replicating the original research while incorporating the rebutter’s design recommendations. Yes, that adds to the overall expense but it saves the agony of having to convince the finder of fact or juries that the points raised by the rebutter are trivial and inconsequential.


TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

Previous Article Police Use of Force Part 1 – Understanding the Use of Force Continuum
Next Article Trump-ing Health Care "Reform"
Tasa ID2016

Theme picker


  • Let Us Find Your Expert

  • Note: This form is to be completed by legal and insurance professionals ONLY. If you are a party in a case that requires an expert witness, please have your attorney contact TASA at 800-523-2319.

Search Experts

TASA provides a variety of quality, independent experts who meet your case criteria. Search our extensive list of experts now.

Search Experts