Who Decides if an Expert Witness is Qualified in a Civil Lawsuit?

expert witness, personal injury witness in court during trail

Expert witnesses often play a pivotal role in personal injury lawsuits, providing an opinion that may dramatically affect the case’s outcome. Determining an expert witness’s qualifications involves both the plaintiff’s and defendant’s attorneys, the judge, and the jury. Turnbull, Holcomb & LeMoine, PC will explain the expert witness’s role in a trial. Read on!

What is an Expert Witness? What is their Importance to a Legal Case?

In the U.S. court system, an expert witness is a person whose opinion, by virtue of education, training, certification, skills, or experience, is accepted by the court as an expert.

Expert witnesses may help with the following:

  • Assessing a case’s value and calculating damages
  • Reviewing relevant documents
  • Formulating claims, counterclaims, and defenses
  • Drafting discovery requests and responses
  • Challenging the opposing side’s experts
  • Developing case strategy
  • Responding to opposing claims
  • Assisting the factfinder

According to the Federal Rule of Civil Procedure 26(a)(2) and (b)(4), there are two categories of expert witnesses: consulting experts and testifying experts. A consulting expert has been retained or consulted with in anticipation of a trial, but does not actually testify in the courtroom. A testifying expert, in contrast, may present evidence during the trial. No matter which type of expert is used, it is best to involve them as early as possible.

Who Decides if an Expert Witness is Qualified?

It must be determined that an expert witness is qualified before they present their opinion. The following people make this decision:

The Expert Witness Themselves

During the engagement process, the expert witness will often detail their role in the case and the scope of their assignment. Problems can arise if the expert witness accepts an assignment that requires them to provide opinions outside of their realm of expertise. That is why it is important that they are qualified to take part in the case.

The Lawyer Who Retains the Expert

The lawyer who found and retained the expert witness is responsible for ensuring that they are qualified. Hiring someone who is not truly qualified to testify can be detrimental to the case.

Opposing Side’s Lawyer

Opposing counsel must also agree that an expert is qualified before they are permitted to participate in the trial. If the opposing lawyer feels that they are unqualified, they may challenge the expert’s qualifications during deposition and trial. They may also make a motion and ask the judge to exclude the expert.

The Judge

The trial judge will also help determine if the expert in question is qualified to take part in the case. Rule 702 states that an expert witness may be qualified by “knowledge, skill, experience, training, or education.” If a trial judge deems the expert unqualified, the judge will exclude them from presenting their opinion.

The Jury

During the deliberation phase of the trial, the members of the jury will consider the credibility of the expert witnesses. This will be based on their perception of the qualifications of each expert witness.

Who Makes the Final Decision?

While there are many parties involved, the decision is ultimately up to the judge. In federal court and most state courts, the trial judge will apply the Daubert standard to determine whether the expert witness’s testimony is based on scientifically valid reasoning – and whether the reasoning has been appropriately applied to the case at hand.

5 Factors of the Daubert Standard

The Daubert Standard has five factors used to assess an expert’s qualifications:

  1. Whether the theory/technique in question can be and has been sufficiently tested
  2. Whether it has been subjected to peer review and publication
  3. Its known (or potential) error rate
  4. The existence and maintenance of standards controlling its operation
  5. Whether it has earned widespread acceptance within the relevant scientific community

Because any statement the expert makes during deposition can be used to impeach them at trial, their testimony must remain consistent from deposition to trial.

Are All Experienced Professionals Immediately Qualified to be Expert Witnesses?

The answer depends on the specific case and the professional’s background. While someone may be very knowledgeable in their field, they may not necessarily be qualified to testify in a case outside of their area of expertise. Put simply, if the case requires the expert to present an opinion outside of their wheelhouse, they are likely not qualified.


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