Other Important Information

What is an Expert Witness?

An expert witness is a witness, who by virtue of their education, training, skill, or experience, is believed to have expertise and knowledge about a subject beyond that of the average person, sufficient that others, including a judge or jury, may rely upon the expert’s opinion. Only experts are permitted to offer opinions at trial. Whether a person qualifies as an expert is for each trial judge to determine. Often, attorneys challenge whether an opponent’s offer of an expert should be permitted to testify as an expert. Once a person qualifies as an expert, is it up to the trier of fact, either the judge or jury, to determine the credibility of the expert’s testimony and how much weight should be placed on his or her testimony. Experts charge an hourly fee for their time. Their compensation can never be contingent on the outcome of a case. Like all witnesses, experts take an oath requiring them to tell the truth.

What Does an Expert Witness Do?

  • An expert can explain to a judge or jury a complex process in an understandable way. For example: what is involved in originating, underwriting, processing, closing, and selling mortgage loans.
  • An expert can explain to a judge or jury the advantages and disadvantages, including any costs, associated with making decisions concerning possible courses of action. Balancing all advantages and disadvantages is necessary in all negligence cases.
  • Expert witnesses can explain to a judge or jury the risks associated with various alternate courses of action.
  • Expert witnesses can explain what can happen if someone falls below the standard of care and why.
  • An expert witness can provide an opinion as to whether a person met or fell below the standard of care.
  • An expert can explain to a judge or jury the relationships between parties. For example: real estate brokers and agents, mortgage brokers and lenders, and homeowner association boards and members of the association.
  • An expert can explain to a judge or jury what a person in a certain occupation or profession does or is expected to do.
  • An expert witness can provide an opinion defining the standard of care for various professionals, businesses, and others.
  • Experts can explain why certain conduct is expected and why certain conduct should be avoided.
  • Experts can explain their experience with certain courses of action.
  • Experts can recommend other experts to attorneys.

Expert Consultants

Consultants are non-testifying experts who do not have to be designated. This allows an attorney to retain a consultant for their expert advice while maintaining confidentiality. All communications with a consultant are privileged. Consultants may not be deposed. A consultant can educate and guide an attorney, but no special personality traits or work history is required. However, should an attorney later decide to use the consultant as an expert witness, he or she can simply designate the consultant as a testifying expert.

Sometimes an attorney will hire several high-profile experts as consultants early in a case, at a minimum fee, order to keep the opposing law firm from hiring them as experts, and to send a message to the other side. This is a strategy worth considering.

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