The Daubert Standard: Understanding the Admissibility of Expert Testimony
Expert witnesses are some of the most powerful tools a legal team can use in the courtroom. They provide undebatable factual evidence, and their testimonies are taken extremely seriously by practically anyone.
However, there are a lot of rules attached to the use of expert witnesses because of how powerful of a tool they are. One of those rules, or more of a guideline, is the Daubert Standard.
This can greatly impact the effectiveness of your expert witness in a case, and if you’re not aware of it, it can derail your entire argument.
So, we’re going to go over what an expert witness is, what the Daubert Standard is, and how the two interact to better prepare you for a courtroom win.
Let’s get started.
What is an Expert Witness?
An expert witness is something you’re likely familiar with if you’ve been dealing with the legal system for a decent amount of time. They’re some of the most powerful tools at a legal team’s disposal. However, if you’re new to it, we’ll do a brief overview of what they are.
Essentially, an expert witness is a “neutral” witness who has an extensive professional background in a certain aspect of the case.
For example, if you are suing a company for having unsafe conditions that led to you breaking your leg on their property, and you need to show just how detrimental that injury has been to your livelihood since it occurred, an expert witness might be an unaffiliated doctor who has dealt with hundreds or even thousands of patients with broken legs throughout their healing process.
Doctors are common expert witnesses, but it’s important to note that practically any professional who is decorated enough in their field can serve as an expert witness in the right case.
However, take note of how we said that the expert witness is “neutral” and “unaffiliated”. In almost every situation, those are key aspects that MUST be abided by. We’ll talk more about that, later.
What Does an Expert Witness Do?
This is a key point because it directly affects how the Daubert Standard will be utilized.
An expert witness isn’t meant to come in and provide a bunch of biased testimony in defense of their client’s argument. Instead, they are meant to testify, in a neutral fashion, based on their firsthand experience in their profession.
So, an expert witness could not be someone’s long-term doctor who comes in and describes the plaintiff’s experience directly. They can’t say “Well, the plaintiff lost their job, had to do months of rehab, and it cost them $10,000 besides lost wages.” The expert witness would testify on how such injuries occur when they’ve seen injuries like that in the past, and what patients have dealt with in the long term in such situations. They would also just be a “random” doctor, but we’ll talk about that more, soon.
This is because the expert witness isn’t meant to persuade. It is meant to inform the courtroom about complex topics that the average person probably isn’t capable of fully understanding without professional experience of their own. For example, the average juror probably doesn’t think that a broken leg is a major injury capable of derailing someone’s life for months or more than a year, and that assumption might sway their opinions in a way that affects their verdict.
In almost every situation, this is all an expert witness is meant to do. This will affect how the Daubert Standard is applied, and it will affect your hiring tactics.
What are the Limitations of an Expert Witness?
This is probably the most relevant aspect of how an expert witness is used and the execution of the Daubert Standard. So, pay attention.
An expert witness is an extremely powerful tool, and that has made it necessary to put plenty of restrictions on how they may operate in the legal system. A standard has to be upheld to ensure that they are used fairly and without discrediting the justice system.
There are a few core rules that expert witnesses must abide by, and we’ll go over them in layman’s terms.
1: No Affiliation
First and foremost, an expert witness cannot be affiliated with a member of the trial in the vast majority of circumstances. There are some circumstances where someone might qualify as a dual witness, who is both a factual witness associated with the case and an expert, but in general, that is not allowed.
For someone to be an expert witness, they need to be a professional with tons of experience in the field, and they must be completely neutral in terms of the case.
2: Neutral Testimony
An expert witness’s testimony will be excessively scrutinized. They cannot make a testimony designed to cater to their legal team’s defense. It must be 100% neutral and based on factual evidence they have gathered firsthand via experience.
This means that, if the patient with a broken leg is trying to say they couldn’t work for 5 years, but the doctor has never even heard of that happening, the witness would have to provide a medically factual, neutral, and experience-based testimony. Even if that testimony does not perfectly align with your team’s argument.
3: Professionalism and Credibility
As we mentioned above, an expert witness must be neutral. If they’re not, or if the judge perceives their testimony as lopsided, that can create major problems for your argument. In fact, the witness’s credibility and professionalism can be called into question.
The testimony given by your expert witness must be one that is credible at all times without question of the expert’s alignment.
This means that your plans for trial must preserve the credibility of the expert while also being picky about who you choose to represent you. We will go into detail about this soon, but keep in mind that you do not want your expert’s credibility as a professional expert called to question.
What is the Daubert Standard?
The Daubert Standard is nothing new, and if you have dealt with the legal system in a way that required expert witnesses within the last 30 years, you have likely dealt with it.
The Daubert Standard was created in 1993, and it was brought in when the Merrell Pharmaceutical company was challenged by a person named Daubert over problems with their products and services.
The nature of the original case is of little importance, but the impact it had on the modern legal field is one that we’ve all felt for three decades, and it will likely be a determining factor for the foreseeable future.
Specifically, the Daubert VS Merrell case called into question the presentation of scientific evidence and how it should be handled. Regardless of what field your expert witness is in, they are covered by this standard.
What Does the Daubert Standard Do?
The Daubert Standard is a unique part of the litigation process. It’s not something you can truly prepare for in a foolproof way, but it is something you’ll have to worry about.
In a case where expert witnesses are used, the judge will essentially determine whether or not the expert witness’s testimony withheld the standards we talked about earlier, and whether or not that testimony was appropriate.
This creates a problem for legal teams. The judge obviously can’t determine whether the Daubert Standard has been upheld if they haven’t heard the testimony of the expert witness. So, the standard has to be applied retroactively.
This means that, after your expert witness has testified, usually toward the end of a case, the judge will apply the Daubert Standard and determine the validity of the testimony.
You can prepare for that by thinking ahead and considering the judge’s opinions, but it’s still something that you really can’t know for sure. This does add a sense of risk to your legal team’s argument, but it’s a worthwhile one.
In most situations where a legal team thinks ahead, the judge won’t have a problem with the expert witness’s testimony. Even if they do, the jury will have heard it, and whether they are supposed to ignore it or not, will impact their decision.
It’s not always that simple, though.
What if the Daubert Standard Doesn’t Work in Your Favor?
Sometimes, whether you’re on top of your game or not, the Daubert Standard can ruin an expert witness’s testimony.
This is because, unfortunately, the Daubert Standard has to be applied retroactively. There is no way for a judge to say whether or not the testimony will hold up to the Daubert Standard before it’s given. So, they have to listen to the testimony and then scrutinize it.
Usually, if you pay attention to what you’re doing in the courtroom, this isn’t an issue. However, if your expert witness says or does anything that isn’t in correlation with the rules, there are some serious consequences.
Namely, the testimony can be thrown out.
How Does the Daubert Standard Affect Your Expert Witness Testimony?
The Daubert Standard will affect your expert witness testimony in some surprising ways.
First, it’ll start triggering specific hiring decisions that we’ll talk about soon. However, it will also make you extremely attentive to what your expert witness intends to say and how they say it. If the judge suspects that the information being presented is biased or irrelevant, the entire testimony will be thrown out.
Officially, that means that your expert witness testimony cannot be used as evidence in the case, and the jury is supposed to ignore it entirely.
Of course, you can’t really erase words that have been said. So, the testimony will still impact their decisions on some level, but they’re not allowed to be caught influencing their decisions via testimonies that have been stricken from the record.
This can be catastrophic. Especially when a large portion of your argument has been built around that testimony. Just one judge’s decision can completely ruin your argument and send you back to the step on, and depending on who your opposition is, they might suddenly end up with a well-developed argument that persuades the jury and wins the case in their favor.
You have to be aware of this, and you have to make decisions leading up to the testimony that will prevent it from happening.
Getting an Expert Witness Who Doesn’t Ruin Your Chances
With the Daubert Standard being used to determine whether or not your expert’s testimony should be allowed, you definitely want to spend a lot of time making good decisions throughout the hiring and prep phase to ensure that the expert doesn’t cause a conflict with the judge’s obligation to uphold that standard.
Here are some key points to look at.
1: Does Their Experience Match Your Argument?
This is the most important aspect to look at in general. As we said before, an expert witness is supposed to be neutral. You can’t sway their argument one way or the other, and if you hire the wrong one, they might go up there and say something that hands the opposition a win.
This is why it’s key for you to extensively interview all potential expert witnesses at your disposal and ensure that their testimonies match your argument without providing the opposition with too much power to respond.
Second, you need to ensure that your expert witness is qualified. This usually means that they need to have years of experience, tons of academic and professional accomplishments, and be a member of multiple prestigious organizations related to their field.
3: The Testimony is Neutral
The testimony they give cannot come off as biased and one-sided. It must be neutral. You want to know exactly what they will say and be able to determine how it will sound to the judge before you hire them.
How to Find the Right Expert Witness
If you’re in need of an expert witness, and you don’t know where to look, contact Litigation Legal Insights. We help legal teams find the right expert witnesses for their cases every day, and we’re prepared to ensure you enter the courtroom with the best chance of winning.