Expert Witnesses

During litigation proceedings, an expert witness is someone such as a doctor or other professional who testifies about and gives opinions on subjects and issues that have been raised in a particular court case.[1] In simple terms, the term “expert” is used because a particular person is an expert in his or her field and as such their opinion on the said subject matter will hold greater weightage and value and can also decide the outcome of a case. For example: “A handwriting expert witness can help determine who wrote a particular word or signature. They can also help settle questions about when a particular item was written down, using methods such as ink dating and analysis. They can further analyze information, form opinions, and prepare reports in a similar fashion to other types of expert witnesses.”[2] Let us learn more about the same with the help of this article.

In the United State’s legal system, there are two forms of witnesses – lay witness and expert witness. “The major function of an expert witness is to express their independent expert opinion based on the information provided. An expert can be employed in different capacities at arbitrations, tribunals, and litigation. Different jurisdictions have different requirements for an expert witness, but there are some general guidelines regarding the expert testimony definition.[3]

In federal courts, expert witness testimony is governed by Article VII of the Federal Rules of Evidence.[4] In the case of Daubert Vs. Merrell Dow Pharmaceuticals, Inc.,[5] the primary holding by the court was that “An expert may testify about scientific knowledge that assists the jury in understanding the evidence or determining a fact in issue in the case. Factors that a judge should consider include whether the theory or technique in question can be and has been tested, whether it has been subjected to peer review and publication, its known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it is widely accepted in the relevant scientific community.”[6]

Beyond credentials, the right expert must have relevant experience not just in his field but also experience testifying at depositions and in court in similar cases.[7] Avoid selecting an expert that always testifies for the defense or plaintiff, which jurors may perceive as a negative.[8] Below mentioned are a few points that discuss an expert’s role:[9]

1. Assessing the value of a case,
2. Formulating claims, counterclaims, and defenses,
3. Drafting discovery requests and responses,
4. Reviewing documents,
5. Challenging the other side’s experts,
6. Developing and refining case strategy,
7. Identifying, evaluating, and calculating damages,
8. Evaluating and responding to opposing claims and theories; and
9. Aiding the factfinder through trial testimony.

Selection

1. Make a possible list of potential expert witnesses. You need to first understand what the subject matter is all about and accordingly search for individuals in that particular subject matter.
2. It is important to understand the persona of the expert. How he or she communicates when they are under stress (as that is plausible to happen when one is being present in a court of law and the expert is being cross-examined by a prosecutor). Reiterating again, expert opinions hold such great value that they can entirely decide the outcome of the case, they can also change and sway the opinions of others around them, especially a jury.
3. It is also important that the expert so recruited should be well-versed in his field.

Above mentioned are a few points that can be considered while selecting the right expert witness. Another example that can help you better in understanding better criteria while recruiting an expert. For example: When researching an expert who will testify in an emerging area such as trauma-induced fibromyalgia, you must consider several factors, such as:

1. Know the science behind the theory: Attorneys presenting testimony in an emerging area should be thoroughly acquainted with all major studies performed and papers written on the topic.
2. Know the case law: Every effort should be made to avail oneself of all major opinions and decisions that have been written on the admissibility of testimony in the emerging area.
3. Know the jurisdiction: Standards for admissibility vary from one jurisdiction to the next, and those standards will have a significant impact on the tack taken in arguing for the admissibility of a novel or controversial testimony.
4. Know the court/judge: The best indicator of future admissibility of a novel or controversial opinion is the established tendencies of the court or judge with respect to novel testimony in general and specifically the class of testimony at hand.
5. Know the expert: When presenting novel testimony, it could be argued that the best safeguard against exclusion would be to select an expert whose testimony on the topic has already been admitted.”[10]

Conclusion

When it comes to lengthy litigation processes, normally expert witnesses, as in when required, are generously paid. As stated, many times, hiring the right expert witness is crucial as it can either make your case or break it. More important is to understand the conduct and way such expert personnel carry themselves. Are they maintaining professionalism? Are they good at what they do? Are they confident in their subject matter? Are they shy or outspoken? Acquiring a reasonable expert witness too, takes time and cannot be left as last-minute work or be delegated to someone else. It is also important the attorney also vet such experts for the issue at hand and make them understand what the case is all about and why his decision is crucial for the outcome of such a case.

[1] Expert witness definition and meaning | Collins English Dictionary (collinsdictionary.com)

[2] Handwriting Expert Witnesses: Their Role, Value, and Admissibility (expertinstitute.com)

[3] expert witness | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[4] Ibid.

[5] Daubert Vs. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[6] Daubert v. Merrell Dow Pharmaceuticals, Inc. :: 509 U.S. 579 (1993) :: Justia US Supreme Court Center

[7] How to Find an Expert Witness: 5 Key Rules | Round Table Group

[8] Ibid.

[9] The below mentioned points are retrieved from: Expert Witnesses—the Basics (americanbar.org)

[10] Michael Brennan, David Dilenschneider, Myles Levin, and Jim Robinson, Chapter 1 “Selecting and Retaining an Expert: SEARCHING FOR AN EXPERT WITNESS” Page No. 16 and 17. Retrieved from: untitled (americanbar.org).