It is rare if ever that a proffered expert will be deemed so unqualified as to be precluded from testifying.\u00a0 Why?\u00a0 The threshold for expertise is decidedly low.\u00a0 To use the Pennsylvania test, \u201c[t]o qualify as an expert witness, a witness need only have a reasonable\u00a0pretension to specialized knowledge, on a subject for which expert testimony is admissible.\u201d Commonwealth v. Kilgore, 650 A.2d 462, 467 (Pa.Super. 1994) (internal quotation and citation omitted).<\/p>\n
Federal law is equally forgiving (some might say \u201clax\u201d).\u00a0 Courts have spoken of \u201cRule 702’s liberal standards of qualifications for experts\u2026,\u201d 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 \u201c[t]he threshold for expert qualifications under Federal Rule of Evidence 702 is low: a minimal foundation of knowledge, skill, and experience suffices.\u201d<\/em>\u00a0 Sumotext Corp. v. Zoove, Inc., 2020 U.S. Dist. LEXIS 17253, *30 (N.D. Cal. February 3, 2020).<\/p>\n 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.\u00a0 The judge might preclude the expert from testifying, and the objection preserves the claim of error if the trial results in an adverse verdict.\u00a0 But what is the proper approach when the expert voir dire<\/em> and the challenge all occur before the jury?<\/p>\n This question was posed to trial advocacy experts in the following format:<\/p>\n 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<\/strong><\/p>\n Here are the responses, the \u2018collective wisdom\u2019 of the advocacy community.<\/p>\n Alvaro Bellido de Luna (<\/strong>Hardy Director of Advocacy and Service Professor of Law at St. Mary’s University School of Law)<\/strong>:<\/strong><\/p>\n 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<\/p>\n Justin Bernstein (<\/strong>Director of the A. Barry Cappello Program in Trial Advocacy, <\/em>UCLA School of Law)<\/strong>:<\/strong><\/p>\n 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. <\/em>Object once on direct examination in front of the jury to signal your challenge to the witness’s qualifications.\u00a0Then voir dire<\/em> 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.<\/p>\n <\/p>\n Elizabeth Lippy (Director of Trial Advocacy, Temple Beasley School of Law):<\/strong><\/p>\n \u00a0<\/strong>The threshold for an expert’s qualifications is exceptionally low.\u00a0 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.\u00a0 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.<\/p>\n I do choose to voir dire experts but only if I intend to present an expert who has better qualifications.\u00a0 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.\u00a0 For example, if my expert has a PhD whereas the opposing party’s expert does not, I would point that out during voir dire.\u00a0 If my expert is published within the field whereas the opposing party’s expert is not, I’d ask that.\u00a0 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.<\/p>\n Note that I only ask questions during voir dire about qualifications that I know my expert has.\u00a0 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\u00a0voir dire questions seem pointless to the jury.<\/p>\n <\/p>\n Kristi Harrington (Distinguished Visiting Professor at Charleston School of Law)<\/strong><\/p>\n \u00a0<\/strong>My answer will depend on why you know the judge will<\/em><\/strong> permit the witness to testify under Rule 702.<\/p>\n 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.<\/p>\n 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\u2019s 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.<\/p>\n 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\u2019s opinion as true and may even disregard the expert\u2019s opinion. Allowing the jurors to hear you articulating the weaknesses will assist you in that goal.<\/p>\n 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\u2019s opinion that you intend.<\/p>\n Scenario #3 creates an issue that since you did not object to the judge\u2019s qualification of the expert at the appropriate time, you waived any objection to the expert\u2019s 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.<\/p>\n Scenario #4 would likely not be a judge\u2019s or your opponent\u2019s 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.<\/p>\n Scenario #5 is my choice! File a Motion in Limine challenging the expert\u2019s 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\u2019s qualifications are so that you can choose to address that in your opening and during the voir dire<\/em> of the expert in front of the jury. Even if the ruling is unfavorable, you will still be able to respond \u201cNote my previous objection to your finding that this witness is an expert\u201d 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.<\/p>\n <\/p>\n Abbie Heller (Assistant Director of Trial Advocacy, Thomas Kline School of Law)<\/strong><\/p>\n 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.<\/p>\n 1) Preserving the issue\u00a0for appeal.<\/p>\n 2) Finding the strategy that works best with the argument that I’m going to make in my closing.<\/p>\n 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\u00a0voir dire<\/em> 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.<\/p>\n 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\u00a0in 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 <\/em>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.<\/p>\n 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.<\/p>\n \u00a0<\/strong><\/p>\n Gwen Stern (Director of Trial Advocacy and Professor of Law, Thomas Kline School of Law)<\/strong><\/p>\n My answer to this hypothetical scenario depends on whether you have \u201cthe goods\u201d 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.\u00a0\u00a0 Being able to lessen the credibility of the testifying expert is key and should be done early.\u00a0 However, If you really don\u2019t 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.\u00a0\u00a0 if you do the tedious pretrial preparation work, ie. reading thousands of pages of the expert\u2019s prior deposition and trial testimony, you are bound to find something helpful to you.<\/p>\n A great area of cross during voir dire involves questions that circumscribe the expert\u2019s area of expertise and role in the case.\u00a0 For example, if you are plaintiff\u2019s 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.\u00a0 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.<\/p>\n Be careful to know before trial what your judge considers prohibited \u201ccollateral matters\u201d 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\u2019s 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.\u00a0\u00a0 Just be mindful of this issue when preparing your cross-examination questions.<\/p>\n 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\u2019t want this done in front of the jury and second, you don\u2019t want the expert ,who is listening, to hear your specific reasoning\u00a0 to his lack of qualifications, so he can fix it going forward.<\/p>\n Lastly, be careful of the proverbial \u201cAlways\u201d and \u201cNever\u201d approach. Knowing when to cross-examine an expert does not fall into either category should be considered on a case-by-case basis.<\/p>\n \u00a0<\/strong><\/p>\n Jules Epstein (Director of Advocacy Programs, Temple Beasley School of Law):<\/strong><\/p>\n \u00a0<\/strong>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.\u00a0 But if I am going to do this it will be outside of the presence of the jury.\u00a0 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\u2019s qualifications only to have the Judge shoot them down with a single word \u2013 \u201coverruled.\u201d\u00a0 The message to the jury is clear \u2013 my brilliant challenge fell flat with the neutral, objective judge.<\/p>\n One added point here.\u00a0 Any argument to the judge would be derived from and regurgitative of my pointed cross-examination.\u00a0 The jury has heard the expert\u2019s flaws\u00a0 and does not need a rehashing of the weaknesses.<\/p>\n However, I would not forego asking the debunking questions.\u00a0 If I save them for my cross on the merits of the expert\u2019s opinion(s), I have lost primacy and let the opinion(s) be received unfiltered.\u00a0 [And there is a fear that if I wait the Judge will deem those issues waived.]\u00a0 The goal is to display the expert\u2019s weaknesses and then effectively shrug the expert off, using body language and perhaps tone of voice to communicate that \u2018if this is the best they have, so be it.\u2019<\/p>\n The exception may be where the objection is not to the expert being allowed to testify at all but to scope.\u00a0 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.<\/p>\n The bottom line?\u00a0 The battle over expert qualifications is in the hearts and minds of the jurors, an possibly in a motion in limine<\/em>; 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<\/em> has accomplished.<\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" It is rare if ever that a proffered expert will be deemed so unqualified as to be precluded from testifying.\u00a0 Why?\u00a0 The threshold for expertise is decidedly low.\u00a0 To use the Pennsylvania test, \u201c[t]o qualify as an expert witness, a witness need only have a reasonable\u00a0pretension to specialized knowledge, on a subject for which expert<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2779","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n\n
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