A Paralegal’s Guide to Experts

Understanding Daubert and tips for finding qualified witnesses

Marisa Tomei at the premiere of War, Inc. at t...

Marisa Tomei at the premiere of War, Inc. at the 2008 Tribeca Film Festival. (Photo credit: Wikipedia)

In My Cousin Vinny, actress Marisa Tomei gives an Academy Award-winning performance as the big-haired girl with an encyclopedic knowledge of hot rods. Her flawless testimony regarding rear axle differential saves the day.

In the movies, calling an expert to testify seems easy – just plunk whomever you want on the witness stand and fire off those clever questions. In the real world, complex rules govern whether an expert can testify and whether that testimony is properly admissible. Even when a questionable expert is allowed to testify that expert’s testimony may still be barred from trial. Therefore, whether you are a paralegal on the side of the plaintiff or defendant, finding the right expert for your case is imperative.

Paralegals are asked to locate, interview, and retain an expert witness to support the underlying theory of a case. The paralegal might also assist in preparing that expert for deposition or trial. To fully accomplish the assignment, it’s important for a paralegal to fully understand the tricky rules surrounding expert testimony. Armed with the appropriate knowledge, a paralegal has the tools necessary to find an appropriate expert.

Does your case depend on presenting an expert to say concrete settlement was caused by defective design of the sidewalk? Or one to say a stairway was not in compliance with the Building Code? For a price, you can almost always find what you need. Sounds just like what you want, right? Better listen more closely. Using an expert with a poor reputation to testify will not only make your client look bad, but it will probably make the judge and jury angry and destroy any credibility your case presentation has created.

As a paralegal, you should know if your expert’s qualifications are weak or if the opinion is insufficiently researched or documented. If such deficiencies are discovered at trial, your attorney’s entire case may be destroyed by a single witness you have selected to testify and not only will you have wasted hours of work but substantial money paid in expert witness fees.

For the past 75 or 80 years, courts, particularly federal courts, have struggled to develop a way to determine whether an expert’s testimony should be allowed into evidence at trial or not. As technology has advanced, evidence presented at trial has become more complex and difficult for the typical juror to understand and the introduction of an expert witness has become a standard presentation. A good expert breaks down complicated evidence into easily understood layman’s terms, making it possible for an ordinary juror to make an informed decision about complex issues.

Lectures have never been so fun.

Lectures have never been so fun. (Photo credit: @andymatthews)

After years of debate, the case of Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2728, 125 L.Ed.2d 469, 482 (1993) finally pinned down a way to precisely gauge the admissibility of expert testimony.  Following the “Daubert” decision, we are left with a two-pronged standard of reliability and relevance. What this legalese means is not only must the expert and the testimony be reliable, but the relevance of the expert’s testimony must measure up to certain guidelines. The generally accepted impact of Daubert is that you are not going to have cutting-edge medicine in the courtroom. Rather, you must examine carefully your expert’s opinion for potential challenges under the Daubert case. The method of measuring the worthiness of an expert’s testimony is more commonly referred to as “The Daubert Standard.”

Whether the Daubert standard favors plaintiffs or defendants is the subject of much academic debate. It is clear though that the Daubert Standard makes it much more difficult to admit junk science into evidence at trial.

A 1999 decision known as the Kumho decision expanded the Daubert decision by declaring that not only do scientific experts need to comply with specific guidelines, but all types of experts must pass the test. This expansion of Daubert to include all types of experts makes the paralegal’s job of finding a worthy expert all the more challenging.

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