Lecture #15 | Expert Testimony

Consultant

Expert providing information or interpretations of evidence to lawyers for either party but who will not testify in court proceedings

Expert witness

Expert who will serve as a witness during legal proceedings

Federal rule of evidence definition of expert opionion

Qualified witness is one who is “qualified by knowledge, skill, experience, training, or education”

• Qualified if:

  • The experts scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue

  • the testimony is based on sufficient facts or data

  • the testimony is the product of reliable principles and methods and

  • the expert has reliably applied the principles and methods to the facts of the case

In short... the evidence presented must be based on good science, incorporate reliable data, and be applied to the case by a qualified expert

Conditions for an expert to be unbiased in a case?

• No personal attachment to the case.

• No contingent payment; not paid based on the outcome of the trial

• No bias evident in previous case record.

Attorney-Client confidentiality

Experts may not discuss case outside of court with anyone but the retaining attorneys.

Stages of litigation

1. Investigation

2. Pleading

3. Discovery

4. Trial

Investigation phase

Phase where each party gathers facts and evidence to support their case.

• occurs before a trial begins and is part of what's more broadly known as pre-trial litigation

Pleading stage of litigation

Initial phase of a lawsuit where each party formally submits their claims and defenses in written documents filed with the court.

Discovery phase

both parties formally exchange information and evidence relevant to the lawsuit

• expert report

• deposition

• subpoena

Expert report

Culmination of investigation by expert

Deposition

Interviews with various experts and witnesses outside of court but are still under oath

Subpoena

Demands from the court for a third party to appear

“Under oath”

formally sworn (or affirmed) to tell the truth, typically in a legal setting. This oath is legally binding, and lying under oath is considered perjury, which is a criminal offense

Perjury

crime of lying under oath—knowingly making a false statement after swearing to tell the truth

Disclosure

Occurs during the discovery phase of litigation

• the mandatory exchange of certain information and evidence between the parties

• expert witness must be identified to he court and to the opposing lawyers

• often occurs when an expert submits their opinions to the court as part of their expert report

Trial phase of litigation

Phase where the case is presented before a judge or jury, and both sides have the opportunity to argue their case, present evidence, and examine witnesses.

• Testimony:

  • Direct examination

  • Cross examination

Direct examination

Lawyer questions their own witness—the one they called to testify—in order to present evidence that supports their case.

Cross examination

lawyer questions the opposing party’s witness—the one they did not call to testify. It happens after direct examination, and its purpose is to challenge the credibility, accuracy, or reliability of the witness's testimony.

Role of expert witness during the trial

• Educate the court on the facts and how to apply the facts

• Maintain composure

• Avoid argumentative response

• Avoid technical jargon

Alternatives to trial

• Settlement

• Plea Bargin

• Dismissal

Settlement

Agreement of the parties

Dismissal

Evidence is too weak

Plea bargin

Defendant pleads guilty, often to a lesser charge

What is the purpose of the expert report?

• Answer specific questions posed by the attorneys or the court.

  • Does insect evidence support plaintiff/prosecutor claims

  • Is insect activity described typical or unusual

• Describe how the insect evidence is relevant to the case.

  • Discuss aspects of insect biology,, behaviors, and management

  • Help court understand entomological aspect and concepts

• Support or contradict other evidence or testimony.

  • Insect evidence is just one part of body of evidence

• May lead to other lines of investigation

Limitations of expert opinion

• Expert is often provides limited info by attorneys

• expert may not know opposing arguments when writing report

Components of expert report?

1) Statement of findings.

2) Basis for opinion.

3) Facts considered.

4) Exhibits to be used at testimony.

5) Expert’s qualifications.

6) Record of compensation

Statement of findings for expert witness report

• opinions and interpretations of the expert

• based on info provided to or obtained by the expert

  • personal statements

  • government or law enforcement reports

  • evidence obtained by others

  • evidence obtained by the expert

Basis for opinion for expert witness report

Information forming expert opinion

• experience

• knowledge

• previous published work

Facts considered for expert witness report

Facts that informed expert’s opinions

• published studies

• experts own data

Exhibits for testimony for expert witness report

Materials be used during testimony

• research articles

• data tables

• figures

• images

Expert qualifications of expert witness reports

What makes the witness an expert

• CV or resume

• relevant publications

• example of work

Record of compensation for expert witness report

What is expert charging for services

• pre-trial fees

• testimony fees

Retainer agreement

Expert witness is retained by an attorney through a contractual agreement

• fees for time, expenses

• not paid for testimony

What no to do as an expert?

1. Do not give opinion outside area of expertise

   1. Experts are easily challenged outside their true knowledge area

2. Avoid absolute words

   1. Never, always, no way

      1. Lawyers will find an exception and then the expert loses credibility

3. DO not write a sloppy report