Expert Witness

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What is an expert witness?

A1. Expert witnessing services are used extensively by lawyers to assist in the presentation and resolution of lawsuits. The requirements for an expert witness include appropriate qualifications, courtroom experience, communication skills, and the ability to understand the needs of a client.

Q2. How is the opinion of an expert witness discredited?

A2. There are three ways to discredit an expert witness: First, the expert's credentials, knowledge, or experience can be attacked. Second, the premise of the expert's opinion can be attached. For instance, the literature or testing instruments themselves are flawed. Third, the expert's conclusions can be attacked. Why couldn't the expert come up with other possibly explanations?

Q3. Is there a standard by which an expert witness must testify?

A3. Two U.S. Supreme Court cases and a change in Rule 702 of the Federal Rules of Evidence changed the way in which expert witnesses can testify in federal court.
In 1993 the Court decided Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579. Since that decision, the lower courts have conflicted on whether the "factors" used in Daubert were applicable to all expert testimony.
Daubert gave a non-exclusive checklist of factors for trial courts to be used in assessing the reliability of scientific expert testimony:

Can the experts' theory or technique be tested or has it been tested? In other words, can the expert's theory be challenged in some objective sense, or is it instead simply a subjective approach that cannot be assessed for reliability?

* Has the technique or theory used by the expert witness been subject to peer review and publication?

* Do we know what the potential rate of error of the technique or theory is when applied?

* Has the technique or theory been generally accepted in the scientific community?

Q4. Does the Daubert decision apply to non-scientific evidence?

A4. The U.S. Supreme Court in its decision in Kumho ...