Civil Litigation Legal Topics Litigation Strategy

What Makes an Expert an Expert?

witness_87617035Before you hire an expert to be a witness in your case, be sure that he or she is going to qualify as an expert. The bar isn’t extremely high, but courts have put the kibosh on the testimony of many hired experts, and you definitely don’t want them to be yours!

Under California law, anyone with the “special knowledge, skill, experience, training, or education” necessary to become an expert in a particular field may be qualified to testify as an expert. Evid C §720(a).

Whether any particular witness has the qualifications necessary to give an expert opinion on a specific topic is an issue primarily left to the trial court’s broad discretion, and it’s hard to attack that exercise of discretion after the fact.

Although courts’ discretion generally tends toward admitting expert testimony and letting jurors decide how much weight to give to it, you can’t be sure that a particular trial judge will conclude that an expert’s minimal experience or qualifications will go to the weight of his or her testimony or to its admissibility.

Avoid the problem in the first place: use an expert whose qualifications aren’t likely to be seriously or successfully questioned in the field of expertise involved.

This doesn’t mean your expert has to be experienced in testifying in court. Judges don’t disqualify an expert simply because he or she hasn’t testified before. In fact, there may be advantages to using a newbie expert because it avoids the “professional witness” label. And witnesses who’ve never testified in court can often better withstand the rigors of cross-examination because they’re not victims of expert witness burnout.

But if you’re going to use an expert who’s never testified before, make sure that he or she understands what’s involved and is well prepared to do battle.

Try as you might to avoid it, there are times you may find it necessary to use an expert whose qualifications and experience may be questioned as insufficient for a particular subject. When this happens, be ready to argue that any questions about the witness’ qualifications should go to the weight—rather than to the admissibility—of the testimony. See CACI 219.

For complete coverage of the skill necessary to be an expert and examples of witnesses that were found to be unqualified as experts, turn to CEB’s California Expert Witness Guide, chap 3. CEB also discusses the rules relating to expert qualification along with judicial comments on those rules in Jefferson’s California Evidence Benchbook §§30.16-30.25. Selecting expert witnesses is one of the many topics covered in CEB’s program Preparing and Examining Expert Witnesses: Reports, Depositions and Cross-Examination, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 replies on “What Makes an Expert an Expert?”

As an attorney who has served as a privacy expert on numerous cases in state and federal court, I learned that if you are cross examined by lawyer(s) who cannot find a way to discredit your work or your opinion, they will try to discredit you personally. This is not well received by a judge nor is it comfortable for a jury. Stick to the issues and focus on the facts and how the opinion is supported by the facts. When cross examining an expert witness, I believe it is wise to be ethical, polite, inquisitive, and focus on the reasons for the opinion. If the judge qualifies an expert- move on. There is no need to try to attack anyone personally. The same holds true in the battle of the experts, tearing down the opposing expert personally does nothing to support your opinion. We can all be professional and separate the people from the problems and the issues when serving or utilizing an expert. To save money in many cases, why not use an agreed upon expert- for example when you need a forensic CPA to value a business the CPA can give you a range of values to negotiate and settle.

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