[Note: For a more detailed examination of Daubert cases and the rulings upon which this checklist is founded see Daubert: The Emerging Profile by Tyron Elliott at http://www.atty.org/daubert1.htm.]

1. Proving The Reliability Of The Field Of Life Care Planning.

One of the first examinations made by a court under Daubert is the examination of the field of expertise itself. Circuit courts are instructing district judges that they must first decide if the field is reliable as an area of science or technical assistance before considering testimony from an expert in that field. The question then becomes: How do we prove the field of life care planning is reliable? A non-exhaustive list includes:

(a) Citation of cases where life care plans have been admitted into evidence.

(b) Identifying texts and treatises discussing the field.

(c) Showing the existence of certification and standards.

(d) Showing the existence of training and continuing education.

2. Proving The Necessity Of LCP Testimony Under Rule 702.

Another analysis to be made in the future by the trial judge is whether the expert testimony is really needed or whether this is something the trier of fact can figure out without expert testimony. The careful practitioner should have a monograph in the form of a brief that shows why the testimony of the life care planner will aid or assist the trier of fact in arriving at cost of care and rehab.

3. Qualifying As An Expert Through Experience.

Not many life care planners can qualify as an expert based primarily on their experience in the field. Those who can, however, should not lose the opportunity to qualify in that manner if possible. The witness should be prepared to show to the court the details of that experience that will allow the court to qualify the expert under that approach. This cannot be done without preparation before trial. A c.v. with emphasis on experience should be available for introduction if necessary.

4. Qualifying As An Expert Through Training.

It is likely that most courts are going to find that life care planning is a science or at least a technical field and are going to hold the expert to standards in that field. That leads logically to the assumption that experts must be trained in the technique and methods of that field. Even if experience based they may have to demonstrate knowledge of the methodology and techniques of the field. Assuming that is the case the witness must be prepared to show what training the witness has had and that the training is of the type used in the field.

5. Demonstrating The Basis For Each Opinion.

We may well expect that, in the future, some judge is going to require for every opinion proof of some or all of the following:

• That the category (module) of future care is one commonly used in the field as shown by publications which may include training manuals, publications discussing the module, seminars, or other tangible proof that it exists as a known component.
  
• That the individual component of each category or module meets the same standards as above.
  
• That the methods used by the expert to arrive at a figure for each component are methods used by other experts in the field. This must be shown by the same publication-type proof.
  
• That the factual basis for each opinion, e.g., age of the client, etc., has been obtained in a reliable manner by the expert and, not only can be verified, but meets standards for admission, where necessary. [ In federal courts there may be less stricture on this area than in some state courts where there must be some proof the facts upon which the opinions are based are in evidence or will be admitted properly into evidence.]

6. Proving The Analytical Fit Between The Data And The Opinion.

One of the points of scrutiny being favored more than others by circuit and district courts as they apply Duabert is this concept of " fit" as expressed in the Kumho case. It is a very subjective concept in one sense and a very logical concept in another. The judge must find the logical connection between the data, studies, facts, etc accumulated or discovered by the expert and the opinion that expert is attempting to draw from those facts. One example of this kind of scrutiny is where the expert gives an opinion by saying that all other possibilities are eliminated and the opinion is what is left. Courts have taken a dim view of that kind of reasoning. The expert life care planner should be prepared in his or her own mind to show why there is a logical connection between the data gathered and the conclusion reached. This is particularly true in vocational assessments.