Lawyers rely on two types of witnesses to prove their cases—lay witnesses and expert witnesses. Expert witnesses also come in two types. Not all cases require the use of expert witnesses. Nevertheless, expert witnesses are critical in some cases that present complex issues of fact. An expert witness can benefit you at trial or the settlement table.
Opinion vs. Fact
The main difference between a law witness and an expert witness is that a lay witness may testify only on what they have personally experienced. They enjoy a very limited latitude to express opinions.
An expert witness, by contrast, can offer opinions on almost any matter within their field of expertise. If they receive accurate facts, they can also provide views on events they did not witness (the appropriateness of a surgical procedure, for example).
Expert Witness Qualifications
There is no absolute set of standards to qualify an expert witness. Qualifications depend primarily on the witness’s field of expertise. Some examples of expert witness qualifications include:
- They are qualified to practice in their field by their state if the state requires specific qualifications. One example is a license to practice medicine. A Ph.D. is also a common requirement.
- They have published research in academic journals dedicated to their field of expertise.
- They have won professional awards.
- Their professional reputation is strong.
A judge will weigh all of these factors and may add additional requirements when evaluating the qualifications of an expert witness. A lawyer might seek qualifications that would not interest a judge, such as experience testifying and high name recognition among the public.
Types of Expert Witnesses
Lawyers use two main types of expert witnesses—testifying witnesses and consulting witnesses.
A testifying expert witness studies the case and offers courtroom testimony in the event of a trial. Even if there is no trial, as long as the injured party files a lawsuit, a testifying expert witness might have to testify at an out-of-court deposition. A testifying expert witness might also have to prepare a written report. The opposing party has the right to:
- Receive a list of all testifying witnesses, including basic facts about their identity and expertise.
- Examine a copy of any report that the expert witness prepares.
- Cross-examine a testifying witness at a trial or a deposition (out-of-court questioning under oath).
Many testifying expert witnesses work full-time as witnesses and no longer practice in their field of expertise.
Consulting witnesses do not testify. The opposing party cannot cross-examine them, even at a deposition. The opposing party need not even know that your lawyer has retained a consulting witness. There are two main reasons why a lawyer might want to use a consulting witness.
If the Witness’s Opinion Favors Your Claim
Your lawyer might hire a witness to prepare a report on your case that includes the witnesses’ opinion on who was at fault. If the witness’s opinion favors your claim, your lawyer might “upgrade” the consulting witness to a testifying witness.
If the Witness’s Opinion Is Unfavorable to You
Suppose your lawyer hires a consulting witness whose opinion disfavors your claim. In that case, your lawyer will not ask that witness to testify, but they will better understand the weaknesses of your case.
Of course, the other side would love to hire the same witness to testify for them. Fortunately, the Texas Rules for Expert Witnesses do not require your lawyer to notify the opposing party of their use of a consulting witness.
How Do Parties Use Expert Witnesses?
Parties use expert witnesses in a variety of ways. Sometimes both sides use expert witnesses, resulting in a battle of “dueling experts.”
- A doctor who treated a slip and fall victim might testify to the extent of their injuries.
- A doctor hired by the defendant might perform an independent medical exam (IME) of the injured victim and testify about the results.
- An expert medical witness might testify that a defendant doctor was or was not negligent in a medical malpractice case.
- An expert witness might testify that a particular product is defective and unreasonably dangerous.
- A truck accident expert witness might use the contents of a truck’s event data recorder to reconstruct a truck accident and determine fault.
- An expert financial witness might estimate your future lost earnings if your accident leaves you disabled.
There are hundreds of other possible uses for expert witnesses.
Professional Expert Witnesses
Some expert witnesses are busy professionals who take time out of their schedules to testify in court. Others are former professionals who now serve as full-time witnesses. Most lawyers prefer professional expert witnesses because of their experience handling cross-examinations by hostile opposing lawyers.
Expert Witness Fees
Expert witnesses almost always charge fees for their research and testimony. These fees are not cheap. This reality raises two critical questions:
- Who pays the fees of an expert witness? Your lawyer will probably pay expert witness fees upfront. If you win your claim, your lawyer may deduct these fees from the amount of recovery.
- Does the payment of fees give the opposing party’s lawyer grounds to accuse the witness of bias in favor of the paying party? The opposing party’s lawyer will ensure the jury knows you are paying any testifying expert witness. This revelation rarely affects the outcome of a case, however.
The use of expert witnesses is routine in many types of cases, including medical malpractice and product liability cases.
Now Is the Time To Start Looking for a Lawyer
If your case is complex enough for you to consider the use of an expert witness, it is complex enough to need a lawyer. Most experienced personal injury lawyers maintain long-term relationships with their favorite expert witnesses. These lawyers can help you find the expert witness that will help you the most. Contact Anderson Injury Lawyers today for a free case consultation.