INTRODUCTION
Have you watched any major court trials, like DEPP V. HEARD on Netflix or Casey Anthony: An American Murder Mystery on Hulu? If so, then you are familiar with a courtroom scene, the judge, jury, attorneys, and their clients. There are always witnesses, but what is the difference between a regular witness and an expert witness? Why are they necessary, and how would an attorney go about finding one? Who knows, YOU may qualify as an expert witness yourself but you just don’t know it. In this blog post you will learn if you have the qualifications and, if so, how to establish a new source of income.
WHAT IS AN EXPERT WITNESS?
Expert Witness Definition
The significant benefit of this industry is that anyone can become an expert witness! According to Federal Rule of Evidence 702, “An expert witness is a person with specialized knowledge, skills, education, or experience in a particular field who is called upon to provide their expertise in legal proceedings to assist the court with understanding complex, technical, or scientific issues.” Attorneys serving the plaintiff and defendant can both hire expert witnesses and pay them for their testimony and consultation. The expert witness must also qualify under specific FRE 702 criteria to certify their testimony is “relevant” and “reliable.” As of December 1st, 2023, the amendments to the federal rule have gone into effect (photo credit – Perkins Coie):
Proskauer similarly describes the new language added by the amendment as:
- A court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence.
- A court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury.
Business Consultant Definition
Some experts choose not to work in litigation. They do not want to subject themselves to the possibility of grueling questions or contentious court proceedings. These professionals would be considered Business Consultants or Consulting Experts. They receive payment for their assistance in a settlement or mediation. These experts act in the same way as Expert Witnesses, but they do not testify in trial or present evidence to a court.
How Much Experience Do You Need?
Unfortunately, a straightforward answer to this question does not exist. It is relative to your chosen industry. For instance, experience in the medical and engineering fields vastly differs from experience in more creative and less analytical fields. However, that is not to say one industry is superior to the other purely based on years of experience. Comparing experiences to others is like comparing apples to oranges; it can not be done. Ultimately, as long as you qualify under Federal Rule of Evidence 702, or the applicable state test, then you can be an expert witness.
Movie: My Cousin Vinny
One of the most unexpected yet hilarious examples of expert witness testimony is from the movie My Cousin Vinny.
Vinny Gambini, played by Joe Pesci, a fairly new street-smart lawyer from New York who’s prone to verbal shenanigans, accepts the opportunity to defend his cousin accused of murder. During the trial scene he puts his girlfriend, Mona Lisa Vito, played by Marisa Tomei, on the stand. From her looks (sequin sweater, short leather skirt, and bright red lipstick), one wouldn’t expect her to be qualified to testify about cars, a pivotal aspect of the case. It turns out her expertise stemmed from her practical experience working in her father’s garage since childhood. Mona Lisa’s hands-on knowledge of cars, engines, and automotive mechanics helped her analyze the tire marks in the scene.
I will spare the rest of the details to avoid revealing any spoilers. While the movie is fictional, the testimony scene is possible at a judge’s discretion. Here is Mona Lisa’s expert witness testimony scene from My Cousin Vinny.
EXPERT WITNESS TESTIMONY CRITERIA
The Daubert Standard
The court has a systematic framework to assess the relevance, validity, and reliability of expert witness testimony before it is presented to the jury. The Daubert Standard grants trial judges the responsibility to be “gatekeepers” of scientific evidence and aims to mitigate their reliance on an expert’s reputation and credentials. Lastly, all Federal Courts use the Daubert Standard. Some states may use the original framework, the Frye Standard.
From the Daubert Standard, trial courts use these five factors to prove the validity of expert witness testimony and methodology:
- Whether the technique or theory in question can be, and has been tested.
- Whether it has been subjected to publication and peer review.
- Its known or potential error rate.
- The existence and maintenance of standards controlling its operation.
- Whether it has attracted widespread acceptance within a relevant scientific community.
PARTING WORDS
To summarize, becoming an expert witness is not a complicated process. An expert witness is responsible for objectively opining on the facts of the case using industry knowledge to support their testimony. The law offers guidelines to ensure you qualify as an expert witness to secure valid and unbiased testimony from legitimate professionals. Becoming an expert witness or a business consultant builds credibility and expands business and networking opportunities. With the requisite knowledge, you can be confident and secure in your testimony. Stay tuned for Part 2 of this blog series, which will give tips for starting your business and the best practices to do so!