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Expert Witnesses

What Qualifies a Witness as an Expert?

Witnesses are generally divided into two categories: fact witnesses and opinion witnesses. The former category involves witnesses with first-hand knowledge of events or facts related to the trial. Opinion witnesses, on the other hand, provide their opinions in order to help resolve the trial.

Opinion witnesses can either be categorized as lay witnesses or expert witnesses. Lay witnesses are those opinion witnesses whose opinions are in no way based on scientific fact or expertise. They might offer opinions based on their memories or life experience, such as if they noticed that a particular car was speeding through a red light. Expert witnesses are hired for their expertise on a certain subject. They examine facts and, under oath, relay their opinion regarding a certain aspect of the trial in which they possess an expertise.

How Can Expert Witnesses Establish Their Credibility?

Expert witnesses are either used to testify in court or to provide attorneys with increased knowledge on a particular subject. If an attorney is going to employ an expert on the sidelines, it’s important to vet them for their credibility. However, if that witness is going to testify in court, it is even more important for their credibility to be clearly established.

There are several ways that expert witnesses can establish credibility:

Career Experience: Hands-on experience in a particular field can certainly qualify a witness as an expert. If the witness can draw on their career experience to make conclusions regarding the case, it can help can help convince attorneys, judges and the jury of their credibility.

Publications: Arguably the most effective way for an expert to prove their credibility is by publishing. Witnesses who establish their reputation through publishing in journals, blogs, or who are featured on television can gain credibility over experts who haven’t been as public with their views.

Prior Experience as an Expert Witness: Another excellent way to qualify an expert is to hire a professional with prior experience as an expert witness. Online directories and expert consultation firms can connect you with an experienced expert with relevant knowledge.

Affirmative or Rebuttal Witness?

A final distinction to be made among expert witnesses is whether they are being used as affirmative or rebuttal witnesses. Affirmative witnesses are used to provide testimony on factual issues for which you bear the burden of proof.  Rebuttal witnesses are used to cast doubt on your opponent’s affirmative witnesses and thus, rebuttal experts are often needed to reduce the damage caused by your adversary’s experts.

As witnesses continue to take center stage in commercial litigation proceedings, commercial litigators need to be increasingly prepared to employ expert witnesses to employ experts for the purposes of affirmation and rebuttal.