Frequently Asked Questions

Q1. What is an expert witness?

A1. Expert witnessing services are used extensively by lawyers to assist in the presentation and resolution of lawsuits. The requirements for an expert witness include appropriate qualifications, courtroom experience, communication skills, and the ability to understand the needs of a client.

Q2. How is the opinion of an expert witness discredited?

A2. There are three ways to discredit an expert witness: First, the expert’s credentials, knowledge, or experience can be attacked.  Second, the premise of the expert’s opinion can be attached.  For instance, the literature or testing instruments themselves are flawed.  Third, the expert’s conclusions can be attacked.  Why couldn’t the expert come up with other possibly explanations?

Q3. Is there a standard by which an expert witness must testify?

A3. Two U.S. Supreme Court cases and a change in Rule 702 of the Federal Rules of Evidence changed the way in which expert witnesses can testify in federal court.
In 1993 the Court decided Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579. Since that decision, the lower courts have conflicted on whether the “factors” used in Daubert were applicable to all expert testimony.
Daubert gave a non-exclusive checklist of factors for trial courts to be used in assessing the reliability of scientific expert testimony:

  1. Can the experts’ theory or technique be tested or has it been tested? In other words, can the expert’s theory be challenged in some objective sense, or is it instead simply a subjective approach that cannot be assessed for reliability?
  2.  Has the technique or theory used by the expert witness been subject to peer review and publication?
  3. Do we know what the potential rate of error of the technique or theory is when applied?
  4. Has the technique or theory been generally accepted in the scientific community?

Q4. Does the Daubert decision apply to non-scientific evidence?

A4.  The U.S. Supreme Court in its decision in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), affirmed that the Daubert factors were to be considered for all experts, not just scientific experts. The court said that Daubert wasn’t to be applied mechanically but rather that the reliability and methodological requirements of Daubert were essential to any determination of admissibility of expert evidence. Futhermore, Kumho held that these factors might also be applicable in assessing the reliability of non-scientific expert testimony, depending upon “the particular circumstances of the particular case at issue.“

Q5. Do the Federal Rules of Civil Procedure have specific time limits and requirements for experts’ reports?

A5. Yes. Under Rule 26 of the Federal Rules of Civil Procedure, the expert is supposed to provide a report that includes:

  * a complete statement of all opinions;

  * the basis and reasons for the opinions;
  * the data or other information considered by the witness in forming the opinions;
  * any exhibits setting forth expert qualifications of the witness;
  * a list of all publications authored within the preceding 10 years;
  * a description of compensation to be paid for the study and testimony; and
  * a list of other cases in which the witness has testified at trial or in depositions within the preceding four years.

Q6. How do state courts differ from the federal court system?

A6.  State court requirements, of course, vary by state and jurisdiction. Except for Georgia, Kansas, Massachusetts, and New York most states have rules of evidence very similar to the Federal Rule of Evidence No. 702 that was in effect prior to December 2000.