When you start eliciting testimony on your expert witness’s qualifications, the other side may offer to “waive the testimony concerning qualifications” or concede that the witness is specially qualified to testify as an expert. It may seem like a gift horse—but it’s often a Trojan horse.
Offers to concede on an expert’s qualifications are typically made when counsel for the other side has no reason to believe he or she can persuade the trial judge that your expert witness isn’t qualified and that his or her testimony should be excluded.
And opposing counsel usually hopes that jurors will
- view the offer to concede as a magnanimous gesture to speed up the trial and spare them from listening to uninteresting preliminary testimony, and
- forget, or give less weight to, the testimony of an expert whose qualifications weren’t shown.
Although you may be tempted to jump at this concession, it’s seldom to your benefit to forgo examining a witness on his or her qualifications. You’re often better off declining the concession offer so that you can ask questions during direct examination that establishes the witnesses superior qualifications and credibility.
Be ready for opposing counsel to object that further showing of special qualifications is irrelevant because he or she has conceded that the witness is qualified to testify as an expert. Respond that the evidence is relevant to show part of the basis for the witness’s opinions (see Evid C §802) and to support his or her credibility (see Evid C §§210, 785).
Try out this statement to counter an offer to concede:
Your Honor, we appreciate counsel’s offer to concede _ _ _[Mr./Ms./Dr./Professor name]_ _ _’s qualifications, but it’s pertinent to an evaluation of _ _ _[his/her]_ _ _ testimony to bring out some of the highlights of _ _ _[his/her]_ _ _ background and accomplishments. It’s necessary to present _ _ _[his/her]_ _ _ qualifications to enable the jury to more fairly and justly evaluate _ _ _[his/her]_ _ _ testimony.
And here’s a cool technique—you can sometimes bring out a witness’s qualifications while appearing to accept a concession:
Your Honor, we appreciate counsel’s offer to let us skip over a lengthy recital of _ _ _[Mr./Ms. name]_ _ _’s education, experience, training, skills, honors, and other accomplishments, so I’ll just have _ _ _[him/her]_ _ _ mention one or two things that will help the jury get to know _ _ _[him/her]_ _ _.
There are sometimes situations in which concessions can be accepted advantageously. For example, a witness whose qualifications are meager or lackluster compared to those of other experts in the case may make a better impression on the jury because his or her qualifications have been conceded by the other side. In accepting a concession of qualification, you can still convey the idea that the witness is a fully qualified expert by stating the following:
As I understand it, Your Honor, counsel is conceding that _ _ _[Mr./Ms. name]_ _ _ has the special knowledge, skill, training, experience, and education to qualify _ _ _[him/her]_ _ _ to testify as an expert witness in this case. With that understanding, I will forgo examining _ _ _[him/her]_ _ _ on _ _ _[his/her]_ _ _ background and accomplishments and proceed directly to the substance of _ _ _[his/her]_ _ _ testimony.
When you’re presenting experts, anticipate offers to concede and be ready to respond to them in the most strategic way.
For more specific advice on examining witnesses, check out CEB’s California Personal Injury Proof , chapter 1. For practical guidance on working with expert witnesses, turn to CEB’s California Expert Witness Guide.
Other CEBblog™ posts you may find useful:
- 5 Rules to Minimize Expert Contamination
- Choosing an Expert Witness: Insider or Outsider?
- Should You Stipulate?
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