The requisite qualifications for an expert to testify at trial are largely dependent upon their field of study. Scientific experts may conduct experiments and gather empirical data based on strict methodology. While experts in other specialized areas may draw conclusions from skill or experience-based observation. However one becomes an expert, the goal for attorneys remains the same – obtain an expert with the strongest qualifications.
A qualified expert needs to be able to present reliable and credible testimony in order to help the jury better understand the facts at issue. But before the expert delves into the substance of their testimony, the first roadblock must be passed – voir dire. The voir dire process refers to testimony that establishes an expert’s qualifications. Likewise, a voir dire cross-examination by opposing counsel aims to discredit and preclude the expert from testifying. Failing to properly qualify an expert can thwart the testimony before it even begins. So it is vital to establish that the expert is competent in the subject matter at issue.
What Happens During Voir Dire?
The voir dire process varies throughout jurisdictions, but generally occurs during the trial itself. At the beginning of the expert’s direct examination, counsel questions the expert on his educational background, work experience, training, and any other factor that bolsters the credibility of the witness. After the preliminary inquiry is completed, opposing counsel then has the opportunity to ask the witness its own questions. Once the court rules that the witness is qualified to testify as an expert, the direct examination into the substantive matters at issue can begin.
It is important to note that the qualifications process is not the same as a Daubert hearing. While a Daubert hearing is conducted during the pre-trial stage, usually through a motion in limine, the voir dire process occurs during the trial and in front of the jury. Although the judge determines whether an expert is qualified to provide substantive testimony; the voir dire questioning may also persuade a jury of the expert’s credibility well before the testimony commences. Therefore, the qualifications procedure can make just as strong an impression on a jury as the central testimony.
Qualifying Your Expert: What to Ask
A successful voir dire is dependent upon the specific expertise of the witness, and there are many ways in which one’s qualifications can be established. They may be qualified through “knowledge, skill, practical experience, training, education, or a combination of these factors”. But there is one common denominator – they must be competent in the subject matter. As such, the voir dire questions should reflect that. However, the voir dire should not rely exclusively on the expert’s resume or curriculum vitae. A perfunctory recitation of the witness’ education and work accomplishments may provide useful background information; it may not necessarily paint the whole picture of the expert’s qualifications. After the basic questioning of the expert’s occupation, place of employment, position, and education, a voir dire should explore more detailed aspects of the expert’s specialty, such as:
- Specialized knowledge of any sub-topics within the field;
- Any additional degrees, licenses, or training beyond the minimum education required;
- Specific duties and responsibilities in current position;
- Number of years working in the particular practice area, and a breakdown of each different position and what it entailed;
- Any teaching experience within the specific practice area;
- Any publications related to the subject matter;
- The number of cases involving the subject matter that the expert has handled throughout his career;
- The testing and experimenting methods used in the field; and
- The means of which an analysis is conducted and a conclusion is reached.
The above is not an exhaustive or exclusive list of questions. Rather, the list is a general guideline for establishing a witness as competent. It is also worthy to note that the sequence of questioning can affect how an expert is viewed to the jury. A chronological, rather than topical, approach to the eliciting the witness’ work history can sometimes be more useful. In addition, an expert’s achievements and accolades should be seamlessly weaved into the testimony to avoid giving the appearance of unnecessary bolstering. For example, instead of asking a witness to list every award he has received, the witness can mention any academic awards he received while discussing his education, and any work awards during the topic of his practice experience. The goal is to craft the questioning so that the expert appears qualified and competent, without dissuading the jury by appearing boastful or arrogant.
Conducting a Voir Dire of the Opposing Expert
The voir dire of the opposing side’s expert offers a unique opportunity to question the witness before the direct examination is completed. If the witness is not disqualified, after the rest of the direct examination is conducted, opposing counsel can cross-examine the witness again in a more in-depth fashion. Thus, voir dire is the first of two chances opposing counsel has at discrediting the witness.
Attacking the opposing expert during voir dire, rather than on the actual cross-examination, is a strategy call. Many lawyers choose not to aggressively question the opposing side’s expert during voir dire. As they may not have the adequate scientific background to argue against the expert’s credentials. In addition, if a lawyer is confident that the expert’s opinions are questionable, it can be beneficial to allow the expert to proceed undisturbed throughout voir dire, and then use the direct testimony to expose the witness’ weaknesses on cross examination.
In contrast, if an opposing expert’s qualifications are clearly weak, it can be advantageous to conduct a more extensive voir dire. Generally, if it can be objectively shown that an expert does not possess the credentials necessary to testify on the subject, there is little risk in illustrating that point during voir dire. A witness’ expertise may not cover the particular facts at issue; i.e., a financial officer of a company may not be equipped to answer questions relating to the human resources department. Also, an expert’s credentials may be lacking in a concrete way. Such as an attorney testifying about issues related to tax law, but has not obtained a LLM or other advanced degree in tax. By pointing out such obvious weaknesses in an expert’s qualifications at the onset, an attorney can potentially obliterate the opposing side’s case.
Overall, the qualifications process is not just a necessary trial procedure. However, it is also a useful tool in establishing the witness’ credibility, reliability, and even likeability in the eyes of the jury. Therefore, rather than perfunctorily going through a list, each question during voir dire should be asked for the ultimate purpose of showing that your expert is not just qualified, but also indisputably correct.
