Trials are at times won or lost based on experts and the lawyer’s ability to make the most of the rules governing the admissibility of expert testimony. This article provides tips to ensure that your expert’s opinion reaches the jury, or conversely, that your opponent’s expert opinion does not.
There is no question that an expert can provide valuable–even case ending–testimony. The expert’s well-reasoned opinion can lend credibility to the counsel’s arguments made to the jury by narrating and reinforcing the major themes of you case. Moreover, through the expert, counsel can often introduce helpful evidence that is otherwise inadmissible. Importantly, the expert can tie together counsel’s theories into a final opinion that proves the ultimate issue of the case. A good expert is a competent narrator who helps to advance the theme of your case.
The range of the subject matter of relevant permissible expert testimony is only limited by the trial lawyer’s creativity. Expert can take the lawyer and the jurors into areas they previously knew little about. Experts can recreate for the jury experiences about which they could otherwise only guess – experiences that are far removed from the juror’s own life experience.
Recreation of events occurs regularly in court rooms through use of scientific techniques, experts can vividly recreate for jurors accident scenes or other relevant conditions. The only requirement is that the demonstration or experiment must be sufficiently similar so that it fairly replicates the conditions it purports to represent.
Because expert testimony is so significant, counsel must ensure that the testimony will withstand an evidentiary challenge. For this reason, it is worthwhile to remind ourselves of the basic legal principles governing expert evidence. Counsel should also be familiar with the tools available to ensure that your expert’s testimony is admitted and conversely must understand how to use the Rules of Evidence to exclude the opponent’s expert.
The Rules of Evidence define the permissible scope of expert testimony. We are permitted to call experts when there are issues in a case that are beyond the common knowledge of the jury. Expert witnesses therefore must have scientific, technical, or other specialized knowledge through advanced education or significant training. They can testify to ultimate issues in a case and render opinions without personal knowledge of the events.
However, trial Counsel still needs:
(i) To be familiar with the qualifications of each party’s expert;
(ii) To understand the record the expert relied on in rendering his/her opinion; and
(iii) To know whether his/her opinion is based on proper methodologies.
Courts often admit expert testimony over the objections of counsel, leaving the jury to determine the weight that the testimony should be given. Thus, an advocate should think twice about challenging an expert where there is simply no dispute within the relevant community of the expert’s opinion. If the expert’s testimony is likely to be admitted over your objection, you will have probably previewed to opposing counsel and the expert the nature of your cross-examination thereby providing them with an opportunity to shore up their arguments.
This concern, of course, should not prevent you from waging a challenge where the expert’s procedures render the opinion unreliable, or where the opinion itself is without basis. In such cases, the expert’s opinion will not be admitted. For this reason, counsel must be prepared be prepared to challenge the expert’s theory or scientific methods.
Because expert testimony can be so persuasive, courts have a duty to disallow unreliable or unduly prejudicial expert evidence. Courts have developed a process to access the reliability of expert’s opinion pretrial and determine whether it should hear it. Your chance of prevailing at trial may depend on the outcome of these challenges.
Therefore, it is important to resolve these issues by motion as soon as possible
Originally by Janet Lee Hoffman and Sara F. Werboff (Oregon state bar litigation journal 2012)