Can an expert witness give opinions?
This, according to Google, is a common question about expert witnesses. The simple answer is…Yes, of course!
That’s the whole point of an expert witness, to provide opinions on a particular subject matter. The expert examines the evidence provided and, based on that evidence, provides an opinion. When being hired by an attorney, in fact, the attorney will say something like “we want you to opine on x.”
The attorney may even tell you what opinion he or she wants…or more likely will tell you something like “we believe x happened, so we need you to look at the evidence and tell us if that’s correct.”
One thing you’re not supposed to do, though, is simply give clients the opinions they want regardless of what the evidence shows. Expert witnesses need to provide unbiased, truthful opinions, opinions that are supported by the evidence. (Here’s a tip; if your opinion would be scoffed at by colleagues in your field, you may have tried to be too helpful to your client!)
How do you qualify as an expert witness?
According to the Federal Rules of Evidence, a person can qualify as an expert witness if he or she has “knowledge, skill, experience, training, or education” and this “scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” [https://www.law.cornell.edu/rules/fre/rule_702] So the question is, is the expert capable of explaining to a judge and jury the specific subjects in a particular case, in a manner that can help the Court understand the issues in this case and come to a conclusion.
This is actually a pretty low bar. It doesn’t mean that you have to be at the top of your profession, nor do you need to be a “world expert” in your field. You just need to be able to show that you understand the subject and can explain it in such a manner that it helps the judge and jury (or maybe an arbitrator). However, having said that…opposing attorneys will often try to make you look unqualified. If you’ve got all your facts straight in your expert report, for instance, one way to attack you is to make you look unqualified, and if they can do that then they can ensure that the court never sees your opinions. So, the more of an expert you are, and can show you are, the more likely you are to survive challenges!
What makes a good expert witness?
An expert needs to have a number of qualities. To begin with, the expert must be just that, an expert (one with the “knowledge, skill, experience, training, or education” that enables the expert to “help the trier of fact to understand the evidence or to determine a fact in issue.” https://www.law.cornell.edu/rules/fre/rule_702 That’s the baseline. But there are a few other things that I can think of that are important. First, you need to be able to communicate clearly.
Experts are likely to have to begin by writing a report or affidavit (this isn’t essential in all states, but in my experience the great majority of cases begin with a report). So writing skills are handy; you need to be able to explain technical issues in a clear, logical manner to non-technical people. Next, the ability to remain “calm under fire.” Opposing attorneys often try to rattle you in depositions and at trial, so if you’re of a nervous disposition this may not be something for you! And also the ability to speak in public, in a calm manner so the jury can see you are being honest and not evasive. Some experts fight every point, and come off as insincere. Sometimes you have to just concede points, and not deny, deny, deny. Fighting every single point, regardless of whether your answer makes sense, is the sign of an expert witness who will do anything to support the client who is paying them. Experts are supposed to provide unbiased opinions. If those opinions don’t suit the client, that’s unfortunate, but you can’t make things up!
