In almost all antitrust lawsuits, both parties need to present expert economic testimony to either prove or disprove liability and damages. If either the plaintiff or defendant can prevent the other side’s expert from testifying, that side’s case will be considerably weakened.
Expert testimony is often used in antitrust lawsuits to show how the defendant’s alleged conduct restrained economic competition. In other words, the plaintiff’s expert must testify about how the market would have been, but for the defendant’s conduct. The defendant’s expert, on the other hand, must testify about how the market would have been the same, regardless of the defendant’s conduct.
In making his case, the plaintiff’s expert often must speak in hypotheticals, which can be proved using a number of techniques, including:
- Economic models
- Classroom experiments
- Natural experiments
In 1993 the Supreme Court held that the trial judge must ensure a scientific expert’s testimony is "relevant and reliable" before presenting it to the jury. This was expanded to include all expert testimony in 1999, including expert economic testimony in antitrust lawsuits. Since these decisions have raised the standard for expertise, they make it easier for parties to attack the other side’s experts as unqualified.
If you have an antitrust problem, it is smart to speak to a business attorney with experience in antitrust litigation. A business attorney will know the best strategies when presenting expert testimony to aid your case, as well as discrediting the other side’s experts. Remember, expert testimony is an important aspect of presenting a winning antitrust case.