It is rare if ever that a proffered expert will be deemed so unqualified as to be precluded from testifying. Why? The threshold for expertise is decidedly low. To use the Pennsylvania test, “[t]o qualify as an expert witness, a witness need only have a reasonable pretension to specialized knowledge, on a subject for which expert testimony is admissible.” Commonwealth v. Kilgore, 650 A.2d 462, 467 (Pa.Super. 1994) (internal quotation and citation omitted).
Federal law is equally forgiving (some might say “lax”). Courts have spoken of “Rule 702’s liberal standards of qualifications for experts…,” In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 789, (3d Cir. 1994) and expanded on that point by making clear that “[t]he threshold for expert qualifications under Federal Rule of Evidence 702 is low: a minimal foundation of knowledge, skill, and experience suffices.” Sumotext Corp. v. Zoove, Inc., 2020 U.S. Dist. LEXIS 17253, *30 (N.D. Cal. February 3, 2020).
In those jurisdictions where a judge determines the issue of expert qualifications outside of the hearing of the jury, there is rarely an obstacle to objecting even with such lax standards. The judge might preclude the expert from testifying, and the objection preserves the claim of error if the trial results in an adverse verdict. But what is the proper approach when the expert voir dire and the challenge all occur before the jury?
This question was posed to trial advocacy experts in the following format:
In a case where the opposing side’s expert has very weak qualifications but you know the Judge will permit the witness to testify under Rule 702, do you
- object nonetheless in front of the jury so that jurors can hear you articulate what the weaknesses are (but also hear the Judge say “overruled”);
- ask to see the Judge at sidebar and make the objection there, so the record is preserved but the jury does not hear the objection or the ruling;
- ask the cross-examination questions to highlight the expert’s weaknesses, but make no objection, saying simply “thank you, your honor” so the jury never hears the judge reject a challenge;
- ask no questions during the qualifications voir dire but say “Your Honor, with your permission we will reserve questions about the witness’ background and experience to our cross-examination;” or
- something else.
Here are the responses, the ‘collective wisdom’ of the advocacy community.
Alvaro Bellido de Luna (Hardy Director of Advocacy and Service Professor of Law at St. Mary’s University School of Law):
In a case where the opposing side’s expert has very weak qualifications but you know the Judge will permit the witness to testify under Rule 702, do you
- object nonetheless in front of the jury so that jurors can hear you articulate what the weaknesses are (but also hear the Judge say “overruled”); I never believe in frivolous objections and I think when you lose a big one like this one, it only infuriates the jury. I would also be concerned that when it is my turn and I start my attempt to discredit the expert, the jury may think I am just a sore loser. They already heard the judge say overruled and the judge said they can testify. If I am going to discredit the expert, I can’t waste it. But please note, this is based on the hypo that I know the judge is going to let them testify. If I don’t know and I think I have good arguments to make, I think I need to make them if for no other reason than to preserve for appeal. Then at least it is at the bench.
- ask to see the Judge at sidebar and make the objection there, so the record is preserved but the jury does not hear the objection or the ruling; If I think I will lose with this judge or I don’t know if I will lose, this seems like the way to go. If I lose, the jury will still get to hear me (at least attempt to) discredit the witness without sounding like a sore loser.
- ask the cross-examination questions to highlight the expert’s weaknesses, but make no objection, saying simply “thank you, your honor” so the jury never hears the judge reject a challenge; I really think this is dependent on where you practice. Some judges will openly admonish you when you thank the judge. If you are not in front of that judge, being polite is never a sin. But I think you still need to be careful because you may run afoul PR rules.
- ask no questions during the qualifications voir dire but say “Your Honor, with your permission we will reserve questions about the witness’ background and experience to our cross-examination;” I am trying to imagine a time when an attorney should do this and I cannot think of one. I think it is hard to reverse a case where the judge let in an expert opinion since the judge is the “gatekeeper” and in the best position to assess whether or not a person is qualified. This is always going to be seen as a judgment call. I think attorneys also have a responsibility to be careful not to ask questions that are beyond an experts area of knowledge. Where that happens, the objection is proper and reversal on that is more likely.
- something else. I really think attorneys on both sides have a great responsibility to find the right expert and not attempt to have a witness give an opinion for something they are not qualified to give opinion testimony for something that is not within the witness’ area of expertise. Sitting on the sidelines allowing witness to testify beyond their expertise, just to nail them on cross is not proper in any instance. How and when the attorney objects is far more important. Due diligence on both sides is the key.
Justin Bernstein (Director of the A. Barry Cappello Program in Trial Advocacy, UCLA School of Law):
When the opponent has a weakly credentialed expert but I do not think the judge will sustain a 702 objection, I subscribe to Daniel Kaffee’s (Tom Cruise’s) approach from A Few Good Men. Object once on direct examination in front of the jury to signal your challenge to the witness’s qualifications. Then voir dire or cross hard on lack of qualifications. And don’t renew the objection, since it will only weaken the impact of your questioning when the judge inevitably overrules. I do not subscribe to Jo Ross’s (Demi Moore’s) approach of strenuous objections.
Elizabeth Lippy (Director of Trial Advocacy, Temple Beasley School of Law):
The threshold for an expert’s qualifications is exceptionally low. That being said, if an expert’s qualifications are lacking to the point I believe the expert should not be accepted by the court, I would handle that argument and issue in a pretrial motion and hearing. This helps preserve the record, obviously, and then, assuming the court denied the pre-trial motion, permits me to ask voir dire questions but not make an objection in the presence of the jury that would be overruled.
I do choose to voir dire experts but only if I intend to present an expert who has better qualifications. The questions I ask on voir dire of the opposing party’s expert mirror the questions I ask of my own expert during the qualifications portion of direct examination. For example, if my expert has a PhD whereas the opposing party’s expert does not, I would point that out during voir dire. If my expert is published within the field whereas the opposing party’s expert is not, I’d ask that. Essentially, I use voir dire as an opportunity not to object or have the expert’s testimony dismiss sed for lack of qualifications, but, rather for advocacy purposes to help point out why the jury should believe my expert instead.
Note that I only ask questions during voir dire about qualifications that I know my expert has. Otherwise, opposing counsel (if clever enough) could easily voir dire my expert using the same questions and point out that neither expert boasts those qualifications thus making my voir dire questions seem pointless to the jury.
Kristi Harrington (Distinguished Visiting Professor at Charleston School of Law)
My answer will depend on why you know the judge will permit the witness to testify under Rule 702.
The question as to whether the proffered expert testimony possesses the qualifications under Rule 702 is a preliminary one, and I would want to know why the judge would have given indication that the testimony would be admissible. While the standard of admitting an expert is generally a liberal one, and the decision reviewed as an abuse of discretion, it is still incumbent upon the judge to be the gatekeeper of the evidence.
As the admission of an expert is generally very fact and case specific, this analysis may differ due to the particular expert, case facts, or jurisdiction. As most jurisdictions would require a contemporaneous objection to the expert’s qualifications, Scenario #1 accomplishes the goals of preserving the objection for the record and allowing the jury to hear the delineation of the objections to the qualifications.
In any charge to the jury regarding an expert witness, the judge will remind the jury/triers of fact that they do not have to accept an expert’s opinion as true and may even disregard the expert’s opinion. Allowing the jurors to hear you articulating the weaknesses will assist you in that goal.
An issue with Scenario #2 is that the objection may not be preserved on the record if the judge does not record sidebars. You will still have the same issue of not objecting contemporaneously. A sidebar may also give the jury an appearance that you are hiding something or are more concerned about the expert’s opinion that you intend.
Scenario #3 creates an issue that since you did not object to the judge’s qualification of the expert at the appropriate time, you waived any objection to the expert’s qualifications. While the jury still hears the weaknesses and you can argue those in your closing, you likely will be unable to challenge that issue on appeal.
Scenario #4 would likely not be a judge’s or your opponent’s preference because the expert cannot give the opinion on direct until the judge qualifies the witness as an expert. Additionally, even if allowed, the expert has given abundant testimony that would establish credibility creating a bigger hurdle for you to discredit during your cross-examination.
Scenario #5 is my choice! File a Motion in Limine challenging the expert’s qualifications and ask the judge to hear the motion pretrial, preferably before opening statements. This will allow you to have the exact ruling from the judge and what the scope of the expert’s qualifications are so that you can choose to address that in your opening and during the voir dire of the expert in front of the jury. Even if the ruling is unfavorable, you will still be able to respond “Note my previous objection to your finding that this witness is an expert” when the judge asks. The jury may not catch the significance at that point, but you have preserved your record and can argue the weaknesses to the jury.
Abbie Heller (Assistant Director of Trial Advocacy, Thomas Kline School of Law)
In a case where the opposing side’s expert has very weak qualifications but you know the Judge will permit the witness to testify under Rule 702, I have two main objectives.
1) Preserving the issue for appeal.
2) Finding the strategy that works best with the argument that I’m going to make in my closing.
Preserving the issue for appeal is going to require at minimum objecting, and if I want the issue to be preserved in the best way possible, likely conducting a voir dire of the expert. In my opinion, whether or not this occurs in front of the jury has little to do with the objective of preserving the issue for appeal, so long as a record exists.
Finding the strategy that works best with the argument that I’m going to make in my closing, has a lot to do with what is occurring in front of the jury and what is happening outside of the jury’s perspective. Making that decision is ideally tied to the argument that follows. If I’m arguing my expert is more qualified than the other expert, I’m likely conducting a voir dire and objecting in front of the jury. To me that leads nicely into a “Sure they were both qualified as experts in something–but just because they both meet minimum standards doesn’t mean those qualifications are equal” argument. So bottom line for me, is that I don’t think there is a right and wrong choice here. The strategy decision should be fact specific and make the most persuasive sense with the argument that follows.
As a side note, it’s essential to know your forum and to have an expectation of how a judge will rule. Knowing your forum influences strategy decisions throughout an entire trial. However, in practice, I never found it helpful to ascribe to the “I already know how the judge will rule” mentality. I don’t. I’m using my experience with a judge to come to an informed expectation. For me, I think ascribing fully to that mentality can lead to overlooking issues that I should otherwise be pursuing as a zealous advocate.
Gwen Stern (Director of Trial Advocacy and Professor of Law, Thomas Kline School of Law)
My answer to this hypothetical scenario depends on whether you have “the goods” on this expert and whether the judge will even allow voir dire cross-examination questions in front of the jury. If permitted and you have good substantive topics, I would cross-examine the witness during voir dire in front of the jury. Being able to lessen the credibility of the testifying expert is key and should be done early. However, If you really don’t have anything at all (which is rare) to discredit the expert, I would not ask questions-especially if you know that judge will permit her testimony. In my many years of practice as a medical malpractice trial lawyer, I found that almost always, you can find some good areas for cross-examination even with the ivory tower experts. if you do the tedious pretrial preparation work, ie. reading thousands of pages of the expert’s prior deposition and trial testimony, you are bound to find something helpful to you.
A great area of cross during voir dire involves questions that circumscribe the expert’s area of expertise and role in the case. For example, if you are plaintiff’s counsel in a medical malpractice case involving a misdiagnosis of a radiologic film and the defense expert is an oncologist being called solely on causation, I would certainly cross the expert to show what this expert is not. Ask questions that determine that this witness has no specialized training in radiology; is not a radiologist and is not offering opinions on the standard of care.
Be careful to know before trial what your judge considers prohibited “collateral matters” regarding the expert during qualification voir dire. Some judges are lenient and will let you ask questions that show that the expert is biased. I.e., the expert testifies 90% of the time for the defense; has testified for this presenting lawyer 30 times before; is getting $10,000 to testify in court whether it’s for an hour or 8 hours. The judge may let you question the expert regarding prior testimony when he had an opposite opinion on the subject matter at hand. Just be mindful of this issue when preparing your cross-examination questions.
If you are going to ask the cross-examination voir dire questions and make an objection to preserve the record in this hypothetical, I would make the formal objection at sidebar for two reasons. First, if you know that your objection is going to be overruled, you don’t want this done in front of the jury and second, you don’t want the expert ,who is listening, to hear your specific reasoning to his lack of qualifications, so he can fix it going forward.
Lastly, be careful of the proverbial “Always” and “Never” approach. Knowing when to cross-examine an expert does not fall into either category should be considered on a case-by-case basis.
Jules Epstein (Director of Advocacy Programs, Temple Beasley School of Law):
I am a firm believer in preserving all potential issues for appeal, so in some way possible I will find a way to object on/for the record. But if I am going to do this it will be outside of the presence of the jury. There is nothing to gain (except hearing myself wax eloquent) for me to explain in front of thee jury all the deficits in the opposing expert’s qualifications only to have the Judge shoot them down with a single word – “overruled.” The message to the jury is clear – my brilliant challenge fell flat with the neutral, objective judge.
One added point here. Any argument to the judge would be derived from and regurgitative of my pointed cross-examination. The jury has heard the expert’s flaws and does not need a rehashing of the weaknesses.
However, I would not forego asking the debunking questions. If I save them for my cross on the merits of the expert’s opinion(s), I have lost primacy and let the opinion(s) be received unfiltered. [And there is a fear that if I wait the Judge will deem those issues waived.] The goal is to display the expert’s weaknesses and then effectively shrug the expert off, using body language and perhaps tone of voice to communicate that ‘if this is the best they have, so be it.’
The exception may be where the objection is not to the expert being allowed to testify at all but to scope. The objection on scope, made in front of the jury, may successfully communicate reasons to doubt the reach of the expert, even if the objection is ultimately rejected.
The bottom line? The battle over expert qualifications is in the hearts and minds of the jurors, an possibly in a motion in limine; but objecting in the presence of the jury when the outcome is almost certainly a loss offers no gains and diminishes any attack the qualifications voir dire has accomplished.