Since the early 1990s, expert witness testimony has been on the rise and, as more experts have testified in civil cases, more challenges to their qualifications have ensued. Here, we explain two concepts concerning expert witnesses and testimony: (1) what the standard for a “qualified” expert is, and (2) how to best ensure that, when using expert testimony, you get the most qualified person possible.
First, to determine what or who an expert witness is, civil courts are required to follow Federal Rule of Civil Procedure 702, with a test the U.S. Supreme Court applied in the famous Daubert case. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 709 U.S. 579 (1993). The basis of the Daubert Standard, both when the Supreme Court originally reviewed it in 1993 and in later cases dealing with the rules concerning expert witnesses, is that the district court judge plays the role of the gatekeeper when considering expert testimony. See Daubert, Kumho Tire Co. v. Carmichael, 119 U.S. (1999).What this means for the average litigant or attorney is that in each trial, it is ultimately up the trial court judge, as to whether or not to allow a person to testify as an expert.
The Daubert cases put together a non-exclusive list for trial court judges to use in deciding whether or not expert testimony will be considered reliable and, therefore, permitted. The specific factors which the Daubert Court set forth are (1) whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. The Court in Kumho held that these factors might also be applicable in assessing the reliability of nonscientific expert testimony, depending upon “the particular circumstances of the particular case at issue.” Kumho, 119 U.S. at 1175.
The Daubert Test has been upheld and taken to mean that the trial court judge makes the final decision as to whether a particular individual is qualified to testify as an expert or not.
Second, an important consideration is how to make sure that your expert witness will be considered to be reliable and make a positive impression on a judge and/or jury. In order to make sure that you have the possible best expert, it’s particularly important to know as much as possible about the case.
Some helpful tips include:
- Know what your expert will be testifying about: Any lawyer who is using expert witness testimony should be familiar with the theory the expert will be discussing. The attorney should also know the basic science involved in the theory, as well as what major studies or documents have been conducted about the specific topic the expert will be testifying to.
- Know your jurisdiction: Each jurisdiction, or district court, sometimes even county, will have similar but somewhat unique rules that deal with admitting expert testimony. Because these standards differ from one jurisdiction to another, it is important to know what those standards are with respect to the jurisdiction where your case is being tried.
- Know your court and judge: It is usually possible to find out which judge will be trying your case, and, regardless of whether you’re involved in a bench (judge-only) or jury trial, it is always a good idea to find out as much as possible about the particular judge you will be appearing in front of. For example, asking a local bar association or reading prior opinions from that specific judge will help to guide you as to what he or she considers admissible when you are trying to introduce expert testimony. Also, many judges have issued specific opinions about certain kinds of experts (e.g., medical experts), so looking at their judicial records will help you to foresee what the judge is looking for in terms of reliable and competent testimony. Remember, the judge, not the jury, is the “gatekeeper,” so he or she is the one who gets the final say as to whether or not your expert testimony will be accepted and whether you can use it effectively at trial.
- Choose the right expert: One advantage that expert witness services and providers offer is a large variety of experts who can testify to the specific issues you have. One of the best ways to ensure that your expert testimony gets admitted is to select a witness whose testimony on the topic has already been admitted in a prior case, before the same court and/or jurisdiction if possible.
These elements will help to ensure that you have the best expert for your case and that the testimony will be accepted by the court as reliable, valuable information. Once a judge accepts an expert’s qualifications, a jury is more likely to do the same, making it that much easier to ensure that your witness is considered the expert on the important issues at hand. Expert witness providers have a substantial range of expertise in choosing the right person for the right case, and these guidelines should help even the lay person understand what to do in order to increase the odds of winning a case.