EXPERT OPINION TESTIMONY: SOME BASICS
September 19, 2011 § 5 Comments
Experts often testify in chancery. They address child custody, business valuations, property appraisals, surveys, tax issues, handwriting, competency, medical and health matters, and many other subjects almost too varied to imagine. MRE 702 allows you to call a qualified witness who has “scientific, technical, or other specialized knowledge” that will assist the chancellor in understanding the evidence or to determine a fact in issue.
The catch is that the witness must be (a) qualified, and (b) have scientific, technical or specialized knowledge that will assist the court in adjudicating the case. It’s up to you to make a record that your witness meets the criteria of the rule.
You won’t get off the starting line, though, if you haven’t done your pre-trial work vis a vis your expert. Remember that if you are asked in discovery to identify your expert(s), you must do so not less than 60 days in advance of trial, per UCCR 1.10, or run the extremely likely risk that you will be denied the opportunity to call that witness as an expert. Merely including the name of an expert in a general witness list is not enough to meet the requirement of the rule. And if you are asked to provide the expert information required in MRCP 26(b)(4), you must timely provide it — all of it, in a responsive manner — or you may be left expert-less in that trial.
Calling an expert as a witness at trial is a two-phase process:
First, you must qualify the expert and tender the witness as an expert, at which point the other side will be given the opportunity to voir dire the witness as to qualifications to testify as an expert. The court will then hear any objections to the qualifications. If the court rules that the witness does have expert qualifications, you move to the next phase.
Second you take the expert testimony itself. Before you get into the substance of that testimony, though, you must establish that the expert’s opinions will be reliable, using the factors set out in Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993).
Here is the process, step by step:
- Identify the witness.
- Establish the witness’s knowledge, skill, experience, training and/or education that qualifies her as an expert.
- Tender the witness as an expert.
- Address any objections to qualifications.
- Have the witness testify about the facts and data upon which the opinion will be based. MRE 702(1) requires that the opinion must be based on “sufficient facts or data.”
- Have the witness establish by testimony the principles and methods she used in arriving at her opinion, and she must establish their reliability.
- Have the witness testify how she applied those principles and methods in this particular case, and why the method she used does produce reliable results in her field.
- Develop the expert opinion.
Some factors you might want to consider in developing whether the expert applied the principles and methods of his field reliably to the facts in your case:
- Have the principles and methods used been tested, or can they?
- Have the principles and methods been subject to professional critique, peer review, and publication?
- What is the known error rate for the principles and methods, and what are the means to control or reduce the error rate? What measures were taken to control the error rate in this case?
- What is the extent to which the principles and methods have been accepted in the field?
- Is the opinion based on research or study that the expert did independent of the litigation?
- Has the expert adequately addressed and accounted for alternative or contradictory explations? How did the expert rule them out?
- Did the expert employ the same standards and techniques in reaching the opinion in this case that he does in the normal course of his professional work?
- Is there a discrepancy between the data and the conclusions reached by the expert? How does the expert explain the discrepancy and rule out other conclusions?
- How does the expert’s opinion tie in to the facts in this particular case?
Obviously the way you develop your expert’s testimony will depend both what is at issue in the case and the expert’s field of expertise. A child psychologist in a custody case will require a different approach than, for example, a handwriting expert in a will contest.
With respect to qualifications, it’s a good idea always to get the expert’s CV (curriculum vitae) and offer it into evidence. Once it gets into evidence, it may prompt counsel opposite into stipulating that it does, in fact, state the witness’s proposed qualifications, which may eliminate lengthy testimony. With no jury to impress, there’s no need to put on a show about the witness’s impressive credentials.
The court always has the discretion whether to allow an expert’s testimony at all. If the court finds that the subject matter of the opinion is not sufficiently scientific, technical or otherwise specialized, the court can rule that an expert need not be called. For example, if the judge or any other lay person can determine that the ground became wet after a rain, it is not necessary to have expert testimony on the point. Likewise, an expert on the law is unnecessary and superfluous because the trial judge is the expert on the law of the case (at least until the COA reviews it).