Expert witnesses are common in criminal and civil cases. There are all types of experts, such as use of deadly force in criminal cases to custody evaluators in divorce and paternity cases. To be qualified as an expert, he or she must pass the Daubert test.
This standard or test comes from a United States Supreme Court case, but is now written into an Indiana Rule of Evidence, which encompasses the proposed skills the expert must possess to qualify as an expert, said rule stating:
“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a facts in issue.”1
This is a low threshold and most individuals who contend they are experts will, in fact, qualify as an expert. The bigger question to qualifying as an expert is how to pick who is an “expert”, particularly if the other side also intends to call an expert in the matter so there are competing or dueling experts.
In a recent continuing legal education class I taught, I was asked how I selected an expert; I blurted out that I try to get the “best” expert. Someone ask what that means and a hearty discussion ensued. In many areas of the law, there is a generally accepted body of experts most attorneys select from. However, the question was debated heavily as it relates to a very specific technical experts, such as a new scientific topic to how pick an expert in a foreign country.
This is a consideration you may well face with your attorney in something as common as a divorce case where real estate that is part of the marital estate is located in a different county. How do you find a qualified appraiser in Country X. What do you look for to find an expert who can do the job and do it competently; experts too can range widely in skills.
After some discussion, the groups of attorneys I was with agreed that getting a name of an expert for even an obscure topic is normally not that difficult with the internet. But without working with experts in your geographic area in a narrow, rare topic, how to do you vet someone when your case may depend on?
Generally, we came up with the following ways to assess a proposed expert (some costly, so the value of the case may come into play):
- Does the expert have peer-reviewed published articles?
- How many times has the expert been qualified as an expert in court?
- Is the expert referenced in reported appellate cases and what is the treatment given to the expert by the appellate court?
- What do other attorneys say about the expert who have used him/her in prior cases?
- Are hearing transcripts available in paper or audio format from prior cases to listen to the expert qualify, testify and be crossed?
- Is the expert affiliated with a University where the issue at hand is taught or researched?
Thus, if your case presents a unique need for an expert, you will probably have significant discussions with your counsel about who to use and the cost; these are the suggestions a group of seasoned trial attorneys came up with. Hopefully, this list may help you if this is the situation you face.
This blog post was written by Bryan Ciyou, Dixon & Moseley, P.C. The firm handles a wide array of civil and criminal litigation and uses experts with frequency. Dixon & Moseley, P.C. attorneys practice throughout the State. This blog is intended to provide general educational advice and is not a solicitation for legal services or specific legal advice. It is an advertisement.