Witnesses used to establish oneâ€™s case can be of various types. One kind of witness is an EXPERT WITNESSâ€”someone who is an expert in their field. A witness can be an expert witness by virtue of educational credentials, professional experience, or special knowledge regarding a particular matter that is beyond that of an average person.
A witness may be considered a witness due to their educational credentials. For example, someone with a Ph.D. in engineering could be used as an expert witness for engineering issues, and an attorney with a J.D. could be used as an expert witness for legal issues.
Even without a particular educational credential, a witness may be considered a witness based on experience. An automobile mechanic may not have extensive education, but years of working with automobiles may be sufficient to qualify him/her as an expert on automobile-related issues. However, it is best for your case to make sure that the particular expert you call has at least a somewhat impressive educational background to back up their professional experiences.
In some instances, a witness may be considered an expert in a field in which they have special knowledge. For example, a native speaker of a particular language can be used as an expert for purposes of translating that language, even though the witness may not have an educational credential in the language or professional experience in translation.
Using an Expert Witness
Either party can utilize an expert witness to assist in the presentation of their case, so long as that party establishes clearly what makes the witness qualified as an expert. In addition, the judge can in some cases request an expert, either one provided by one of the parties or an impartial, independent expert, to provide more complete knowledge about some aspect of the case before the court.
Selecting an Expert
An expert must appear trustworthy and inspire confidence in the decisionmaker that what he/she says is true and knowledgeable. The expert must appear professional in dress, demeanor, and speech. In addition, it is crucial that an expert not overuse industry lingoâ€”highly-technical or overly-specific terms and descriptions. Jurors (and judges) may not be in a position to understand such language, and jargon will only serve to confuse and confound.
Testifying vs. Non-Testifying Experts
Experts will not always testify at trial. In some cases, an expert may be used only to provide parties and/or the court with additional information, and will not appear in court. Rules regarding expert witnesses differ depending on whether they do or do not testify at trial.
A party can hire an expert to help with the evaluation of some part of their case. For example, one may consult a mechanic to get an expert evaluation of a problem with an automobile, and may use that information to help formulate oneâ€™s caseâ€”but not have the expert present at trial.
Non-testifying experts are not subject to the discovery process; in other words, if an expert will not testify at trial, he/she and his/her information need not be provided to the opposing party in response to interrogatories or requests for production of documents.
If an expert will be a witness at trial, his/her identity and any information provided to the party engaging the expert must be disclosed to the opposing party. All documents provided by the expert must be turned over upon request during the discovery process; the goal is to ease the burden on a party of gathering information that has already been acquired by the party engaging the expert.
Finding the Right Expert
There are numerous ways to find an appropriate expert. It is easy to search online or in a libraryâ€™s print resources. The local bar association may have a list of recommended experts, categorized by subject matter of expertise. Word of mouth is also usefulâ€”everybody knows somebody, and colleagues, friends, and family may know of someone who is qualified to act as an expert on a particular matter.
It is important to carefully review an expertâ€™s credentials, experience, and history of acting as an expert witness. Beware of experts whose sole profession is to testify at trial; such people may be seen as being involved for money only rather than in the interest of justice, and the credibility of the information they provide could be viewed as questionable.
Finally, be aware that most experts will charge a fee for their time in trial and in preparation, as well as the use of their knowledge and experience. A payment agreement should be prepared to clearly lay out the duties of the expert (preparation for and appearance at trial) and the amount the party engaging the expert is expected to pay for the services provided. Agreements to pay contingent on the outcome of the trial are NOT allowed, and are unenforceable in all courts.
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