How to Become an Expert Witness

Witness vs Expert witness

Witnesses and expert witnesses play distinct roles in legal proceedings. A witness is an individual who has personal knowledge of the events or circumstances relevant to a case. They provide testimony based on their direct observations or experiences.

Regular witnesses recount facts, share their version of events, and assist in establishing a timeline or sequence of occurrences. Their credibility and ability to recall details accurately influence their impact on the case’s outcome.

Expert witnesses, on the other hand, are professionals with specialized knowledge, skills, or expertise in a particular field relevant to the case. These experts provide insights that the average person or juror might lack.

They offer informed opinions, analyses, or interpretations that can help clarify complex technical, scientific, or industry-specific matters. Courts often admit expert witnesses to aid in understanding intricate subjects, like medical diagnoses, financial intricacies, or engineering assessments.

While witnesses provide firsthand accounts, expert witnesses offer professional insights. Both types of witnesses contribute to the pursuit of truth within legal proceedings, offering different dimensions of information to help judges and juries make informed decisions.

Federal Rule of Evidence 701 deals with the admissibility of lay witness testimony whereas 702, deals with the admissibility of expert witnesses.

Professionals as Experts Witnesses

Expert witnesses, drawn from various professional fields, play a crucial role in legal proceedings by providing specialized insights that aid in understanding complex matters. These professionals, possessing extensive knowledge, training, and practical experience in some of the following areas:

• Psychologists
• Psychiatrist
• Medical
• Forensics
• Cell site & Mobile phone analysists
• CCTV analysists
• Social Media

Source: Freepik

The value of expert witnesses lies in their ability to bridge the gap between intricate subjects and the comprehension of judges and jurors.

They offer expert opinions, analyses, and interpretations that can unravel convoluted technical details, scientific theories, or industry-specific practices. Their testimony serves to educate the court on matters that require specialized expertise, enabling a more informed and fair decision-making process.

It is worth noting that there is no such defined process to become a certified expert witness. The accepted requisites to be considered as an expert can usually be indicative through a specialized academic expertise or practical experience or a combination of both in the relevant subject of expertise.

However, the selection and credibility of expert witnesses are pivotal. Courts evaluate their qualifications, experience, and objectivity to ensure their testimony is reliable and unbiased.

Attorneys often choose expert witnesses who can present complex concepts in a clear and comprehensible manner, making their testimony accessible to those without expert backgrounds.

In essence, professional expert witnesses act as educators of the court, illuminating intricate aspects of a case that go beyond the understanding of laypeople. Their contributions aid in upholding the principles of justice by facilitating well-informed judgments based on a broader and more nuanced perspective.

Fundamental Functions of an Expert Witness

1. Scientific Function

Scientific expert witnesses provide specialized knowledge and opinions based on scientific principles, assisting the court in understanding complex technical or scientific matters relevant to the case. This includes collecting, testing, and evaluating evidence and forming an opinion as to that evidence.

2. Forensic Function

Forensic expert witnesses, on the other hand, apply their expertise to analyze and interpret evidence within a legal context (usually construed to be one experienced through one/more of their five senses), helping the court establish facts and make informed decisions based on the inference drawn from such sensory experience.

Legal Standard Governing Expert Witnesses

There is no such commonly fixed rule that governs the qualification of an individual as an expert. However, in common parlance, the admissibility of expert testimony is determined by the Daubert Standard. The following standards have been historically employed in the US for determining the question of admissibility of an expert’s testimony:

1. Frye standard

The “Fyre standard” refers to a legal standard for the admissibility of expert testimony that emerged from Frye v. United States (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) )in 1923.

Under the Frye standard, expert testimony is admissible if the scientific or technical principles on which the testimony is based are generally accepted within the relevant scientific community. In other words, the court would allow expert testimony if the underlying scientific theory or technique was widely accepted as valid by experts in the field, regardless of the expert’s individual qualifications.

2. Daubert standard

The Daubert standard, arising from the 1993 Daubert v. Merrell Dow Pharmaceuticals (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579) requires judges to act as gatekeepers, ensuring that expert opinions are both relevant and reliable.

For admissibility, the testimony must be based on sound scientific or technical principles, fitting the case’s issues, and assisting the fact-finder. The expert’s methodology should be testable, have a reasonable error rate, and ideally, be subject to peer review and publication.

3. Kumho standard

In 1999, Kumho Tire Co. v. Carmichael (Kumho Tire Co., Ltd. v. Carmichael, 119 S.Ct. 1167 (U.S. 1999)) extended the Daubert standard to non-scientific expert testimony, broadening its application beyond scientific and technical fields. This “Kumho standard” clarified that the reliability and relevance criteria for expert testimony applied to various disciplines, not just the sciences.

Courts now evaluate the methodology, principles, fit, testability, error rate, and acceptance of expert opinions across diverse areas, ensuring that all expert testimony meets the same rigorous standards for admissibility. The Kumho standard thus expanded the Daubert framework to encompass a wider array of expert testimony, promoting consistent and thorough scrutiny of evidence in legal proceedings.

Voir Dire for Expert Witnesses

A voir dire examination is used to make a preliminary determination of the competency of the witness in the area of expertise that corresponds to the subject matter of his or her testimony.

Voir dire during a trial involves questioning of the potential expert witnesses to determine their qualifications, expertise, potential biases, and suitability to testify.

This process aims to ensure that the expert’s testimony is reliable and credible before it is presented to the court. Attorneys from both sides may question the expert witness about their education, professional background, experience, affiliations, prior testimonies, potential conflicts of interest, and methodologies used in forming their opinions.

The judge oversees this process to assess the expert’s qualifications and the relevance and reliability of their testimony.
Voir dire for expert witnesses helps judges make informed decisions about admitting or excluding expert testimony, ensuring that only qualified and unbiased experts provide evidence in legal proceedings.

Often asking leading questions from your expert is a master-tactic employed by many attorneys in order to uplift the credibility of their expert. These leading questions may be on lines of something like: “Mr. Rodriguez, as a recognized industry leader with three decades of experience in civil engineering, could you briefly outline the types of projects you’ve overseen that have directly contributed to the safety and infrastructure of our communities?”

Duties of an Expert Witness

An expert usually performs the following duties:

1. Provide written reports
2. Conduct research
3. Be impartial
4. Confine statements to expertise
5. Provide relevant information & balanced opinions
6. Declare conflicts of interest
7. Base opinions on facts
8. Communicate limitations
9. Disclose changes
10. Respect confidentiality
11. Cooperative to legal interviews
12. Attend trials

Source:Freepik

Competency of an Expert Witness

An expert witness’s job is more comprehensive than a mere expert. This is particularly because of the fact that an expert witness is supposed to perform a number of duties for the court, including providing expert witness services. To perform these functions, an expert requires additional knowledge coupled with specified skills. An expert witness therefore shall develop a series of core competencies in order to dispense these functions. The core competencies could include the following:

1. Ethics and personal attributes
2. Proven knowledge and experience
3. Understands current and relevant law, regulations, and guidance for Expert Evidence familiar with the Civil Procedure Rules (Rule 35),US
4. Federal rules of evidence
5. Delivers & creates clear, compliant, impartial witness reports
6. Participates constructively in discussions of experts
7. Create a good quality joint statement

Expert Witness Selection Factors

Expert witness selection involves a comprehensive assessment of various factors that collectively influence attorney decisions. Here are some factors that bolster an expert’s credibility, showcasing their industry recognition and expertise:

• Professional accolades such as awards, fellowships, and published works in esteemed journals.
• Logistical considerations encompass experience, location, rates, schedule flexibility, and communication skills, all of which impact an expert’s accessibility and compatibility with the legal team’s needs.
• The expert’s presence as a speaker at conferences and being quoted in the press underline their authority and the broader relevance of their insights.

Moreover, the American Bar Association lists out four characteristic traits that should be considered as factors for the retention of an expert witness, them being:

• Qualification
• Credibility
• Ability to teach in a way that they can explain complex concepts to the judges as well as the jury in a lucidly, easy to understand manner.
• Friendly demeanor

These supplemental factors serve as indicators of an expert’s prominence and standing within their field. Attorneys weigh these aspects collectively to select an expert witness who not only possesses specialized knowledge but also aligns with the case’s requirements, can communicate effectively, and adds weight to the legal argument through their accomplishments and professional standing.

Can You Make Money as an Expert Witness?

More often than not, expert witnesses charge a sum of money for offering their expertise in a legal case. According to Glassdoor, the estimated average pay of an expert witness in the United States is over $174,000 per year.

The average rate for preliminary case reviews for expert witnesses is over $350 an hour. It is worth noting that this expert witness fees differs on multiple factors that may include the like of the practice area, location, experience level, importance of the case, complexity of the case etc.

With virtually no fee caps, experts are paid what the market demands for their services — and the market for their services is very robust.

How to Become an Expert Witness: FAQs

1.  What are the limitations of an expert witness?

Expert witnesses have limitations including potential bias, varying qualifications, complex language, differing opinions, influence on decision makers, dependence on provided information, legal constraints, cross-examination challenges, cost, and subjectivity.

2. How do I promote myself as an expert witness?

To promote yourself as an expert witness, you may adopt a set of marketing strategies which could involve word of mouth promotions, making publications that strengthens your position as an expert, creation of a website and joining professional associations of experts, getting enlisted in expert witness directories etc. Basically, you need to put yourself in the spotlight as an expert.

3. How to become an expert witness nurse?

To become an expert witness nurse, you firstly need to obtain a nursing degree and gain significant clinical experience. When you develop expertise in a specific area of nursing, you may enhance your credibility through continuing education and certifications. Finally, Network with legal professionals, join associations, and market your expertise.

4. How to become an expert witness physician?

To become an expert witness physician, complete medical school and specialized training. Gain extensive clinical experience in a specific field. Stay current with medical advancements through continuing education. Develop a strong reputation by publishing research and speaking at conferences. Network with legal professionals to offer your expertise in legal cases.

5. How to become an expert witness psychologist?

To become an expert witness psychologist: Earn a doctoral degree in psychology, preferably with a specialization. Obtain licensure to practice psychology in your jurisdiction. Gain substantial experience in clinical practice and research. Acquire expertise in a specific area relevant to legal cases. Network with legal professionals and market your expertise to attorney groups and organizations.