By James J. Mangraviti, Jr. Esq.
An expert witness must be qualified to give all the opinions which the expert proposes to give in a particular case. That begs the question of who decides if an expert witness is qualified. There are actually many people who decide if an expert witness is qualified in a particular case. These include:
The expert witness himself/herself: Before an expert witness is retained in a case that expert will typically discuss the scope of his/her assignment during the engagement process with the retaining attorney. It is incumbent on an expert witness to only accept assignments for which they are truly qualified. Issues with expert witness qualifications mostly occur when the expert in question agrees to offer an opinion that is not squarely within the expert’s wheelhouse. It is therefore important for experts to understand each and every opinion retaining lawyer is requesting and only agree to assist on areas in which the expert is clearly and demonstrably qualified to opine.
The lawyer who is retaining the expert: It is the responsibility of the retaining lawyer to seek out and hire only expert witnesses who are qualified to give each and every requested opinion. Lawyers who hire unqualified experts or push experts to testify out of their depth are doing a disservice to their clients and could even be guilty of legal malpractice. This means that at the end of the day an expert witness will not be called to testify on an issue unless retaining counsel decides that that expert is indeed qualified.
Opposing counsel: Opposing counsel will also decide if an expert witness is qualified. If opposing counsel feels that the expert is not qualified that opposing counsel can challenge the expert witness’s qualifications during deposition and trial. The opposing lawyer can also make a motion objecting to the expert testifying and request that the judge exclude the expert from offering an opinion.
The judge: Per Federal Rule of Evidence 702, the trial judge will decide whether the expert in question is qualified to present an opinion to the jury. Rule 702 states that an expert witness may be qualified by “knowledge, skill, experience, training, or education.” If a trial judge concludes that an expert witness does not meet the requirements of Rule 702, the judge will exclude the expert witness from offering the opinion in question.
The jury: During their deliberations the jurors will weigh the credibility of the expert witnesses in the case. The jury will base their decision in part on their perception of the qualifications of each expert witness. So in this sense ultimately it will be the jury who decides if an expert witness is qualified.
It is a best practice that experts only give opinions on areas where they are truly and demonstrably well qualified to do so. In colloquial terms, this means that the expert should stay in his/her sandbox. When experts start to get out of their sandbox the judge or jury can decide that they are not qualified. This could have a negative impact on both the case and the expert’s career.
James J. Mangraviti, Jr., Esq., has trained thousands of expert witnesses through seminars, conferences, corporate training, training for professional societies, and
training for governmental agencies including the FBI, SEC, IRS, NYPD, Secret Service, and Department of Defense. He is a former litigator with experience in defense and plaintiff personal injury law and insurance law who currently serves as Principal of the expert witness training company SEAK, Inc. Mr. Mangraviti received his BA degree in mathematics summa cum laude from Boston College and his JD degree cum laude from Boston College Law School. He is the co-author of 31 books, including: How to Write and Expert Witness Report; How to Be a Successful Expert Witness: SEAK’s A-Z Guide to Expert Witnessing, How to Be an Effective Expert Witness at Deposition and Trial: The SEAK Guide to Testifying as an Expert Witness. Mr. Mangraviti was the co-founder in 2000 of SEAK’s Expert Witness Directory. Mr. Mangraviti has designed dozens of expert witness training programs and has personally taught experts in a group setting over 200 times since 1997. He can be reached at 978-276-1234 or firstname.lastname@example.org .