Expert witnesses play a critical role in the judicial process. The testimony of these professionals can swing juries, educate judges on complex technical subjects, and ultimately win lawsuits. Expert witness opportunities are available for individuals with advanced expertise in any discipline – from master plumbers to leading neurosurgeons – the diversity of civil litigation means that there is a consistent demand for experts in every industry. In return for their assistance, expert witnesses receive compensation from the attorney who retains them. This compensation can vary based on the type of work done, and is negotiated between the expert and attorney directly. So what does it take to be retained as an expert witness on a case? This article outlines the requirements and process for becoming an expert witness.
Can Any Professional Become an Expert Witness?
The short answer is yes – an expert witness may be selected from any profession. Doctors, nurses, and paramedics are commonly sought for their expertise concerning medical procedures, medications, the severity of injuries, and similar topics. Scientists and engineers also make regular appearances as expert witnesses. Though scientific and medical opinions may be the most commonly sought after, other professions are also in high demand. For example, a teacher may be designated as an expert witness in cases involving educational standards. Likewise, contractors and architects are frequently retained to offer explanations for construction accidents and building code violations. Even artists and musicians may be needed to discuss authenticity and copyright issues. Virtually any issue can be at the heart of a lawsuit, so any professional opinion may be necessary.
At What Point Can I Call Myself an Expert?
There are many ways to become qualified as an expert, whether it is through specific on-the-job experience or extensive education. However, there are a few guidelines that tend to hold true across all cases.
Ideally, an expert witness will have an advanced or terminal degree in her field. However, having a long and distinguished career in your profession can often outweigh the need for a thorough academic background. In many instances, having years of experience and a high-ranking position are primary concerns. If an attorney is interested in retaining you based on your credentials, they will usually consider a number of supplemental factors, including:
- Do you have published work in highly regarded journals or trade publications?
- Have you served as a speaker at professional conferences?
- Have you been quoted by the press?
- Have you won any prestigious awards, grants, or fellowships?
The importance of these factors can vary from case to case, and from attorney to attorney, but generally speaking the more professional accolades an individual has the more attractive they will be as a candidate expert witness. In addition to the factors listed above, other logistical considerations can also factor into an attorney’s decision to retain you as an expert witness, including:
- Your previous experience working as an expert witness
- Your proximity to the trial’s location
- The hourly rate you establish for your services
- The flexibility of your schedule
- Your ability to communicate complex concepts in a simple and straightforward manner
The Legal Standard for Expert Witnesses
There are no “hard and fast” rules that dictate who can and can’t serve as an expert witness. Instead, attorneys and judges rely on two significant court opinions when determining whether an individual is qualified. Prior to the 1990s, Frye vs. the United States created the de facto standard for expert witness testimony. Frye held that witnesses needed to provide testimony that was based on techniques and models that were widely accepted in the scientific community. Under the Frye standard, as it has come to be called, expert witnesses within the same field would typically give very similar testimony, as the basis for that testimony would be grounded in a shared body of knowledge. The Frye standard is still upheld in many state courts, however many states have adopted a newer standard based on another formative case.
In 1993, Daubert vs. Merrill Dow Pharmaceuticals, Inc., produced a new standard by which expert witnesses were qualified. In Daubert, the Supreme Court altered the arguably more stringent requirements of Frye. Under Daubert, testimony can be based on an expert’s professional opinion, if the expert witness has used scientific methods, relied on peer-reviewed methodology, and has the experience and education to support her conclusions. Daubert empowers judges to be ‘gatekeepers’ in determining the validity of the expert testimony, as well as the extent to which that testimony can be presented to the jury. Several cases have since expanded and refined the Daubert standard, creating the Daubert trilogy of foundational cases. This newer standard is upheld by the majority of state courts and the federal court system.
So What Does This Mean For Me?
Legal jargon notwithstanding, the bar for who can and cannot serve as an expert witness is not set in stone and can vary considerably on a case-by-case basis. Generally speaking, you are qualified to serve as an expert witness when you have sufficient skill, proficiency, and experience in a particular area of knowledge to assist the finder of fact (read: judges and juries) in judging the matter at hand. If you have any degree of specialized training, advanced degrees, unique work experience, or are regarded as a thought leader in your field, you could have what it takes to serve as an expert witness.
Things You Should Consider Before Accepting an Expert Witness Engagement
Before agreeing to become an expert witness, you must be sure that you are comfortable going through deposition or trial, as well as having your personal and professional record scrutinized through an adversarial process. Not every case heads to the courtroom, however, and there’s no shortage of expert witness opportunities that only involve the review of paper records, independent testing, accident site visits, or report writing. It is important that you share exactly what you are and are not comfortable doing with the attorney before you begin work as an expert so that everyone is on the same page as to what can be expected going forward.
Overall, becoming an expert witness can be a rewarding and enriching experience for individuals who have distinguished themselves in any area of practice. If you are interested in pursuing expert witness opportunities, apply to Expert Institute’s network of subject-matter experts!