As you accumulate course work, conferences, training, and experience during your professional career, it is natural to ask whether and when you can be considered an expert and be tendered as an expert witness in the courtroom. These are important questions as they define a significant progression in your qualifications and career. The purpose of this article is to explore the subject of assessing whether an individual has achieved a sufficient level of expertise to be labeled an expert and utilized as an expert witness in the courtroom.
When I teach the legal components of the LEVA Level 1 course (Forensic Video Analysis and the Law), which is often the first formal course participants have taken in the study of video technology and its use in the forensic setting, I introduce the topic of becoming an expert witness. Lest any course participant think that this course alone will make them an expert I state, “Taking this course makes you an expert in absolutely nothing.” The purpose of this statement is not to denigrate this valuable and challenging course, but rather to make the point that no one course, training event, or experience transforms someone into an expert. Achieving the expert level is an incremental process that typically takes years rather than months.
What is the definition of an expert witness and who decides whether you are one?
The definition of an expert witness is quite straightforward. An expert witness is a person who has achieved a level of expertise in a particular field that exceeds the knowledge level of the trier of fact and who applies that expertise in a legal setting. Deciding whether you have attained this level is a three-step process. First, you must be satisfied that within your area of expertise you have taken the requisite training needed to operate at a high level in your field. You know best what training opportunities exist, what certification programs are available, and what qualified experts in your field have achieved. You must also be satisfied that you have sufficient practical experience to utilize the training that you have obtained. Second, the lawyer who is contemplating presenting you as an expert witness must be satisfied that you have sufficient education, training, experience, and skill to ground an application to have you qualified by the court. Lawyers don’t like making applications that are unlikely to succeed. Third, a judge will ultimately decide whether for the purposes of the case before the court you are an expert, whether your expertise exceeds the knowledge level of the trier of fact, and whether your assistance is needed to assist the trier of fact.
Assessing expertise
Becoming an expert witness is a significant accomplishment and marks a notable advancement in an expert’s career. Assessing when someone has reached that level is necessarily a subjective exercise. In some cases, there are clear objectively defined prerequisites. For example, experts in specialized fields such as medicine, engineering, and accounting would generally need to be qualified doctors, engineers, and accountants, and members in good standing of their professional association. Attaining these documented steps will make the task of being qualified as an expert witness a logical extension. In less formalized professions, there will rarely be one CV entry that tips the balance from non-expert to expert. Rather, a cumulative assessment must be undertaken by counsel to determine whether it can fairly be argued that the proposed expert has accumulated sufficient qualifications in varied categories to have reached the expert level. This test is not whether the proposed expert is the best in the field. That would be far too stringent a test to meet. Instead, the question that must be answered is whether through education, training, experience, and skill, the proposed expert has achieved a level of expertise that exceeds the knowledge level of the trier of fact.
The attributes of education, training, experience, and skill are not always weighted equally. For example, someone with extensive experience and skill in automotive mechanics but no formal education or government license could still be qualified as an expert in automotive mechanics. Experience can substitute for formal education in some areas. Equally, someone with extensive formal education in a specific area but no practical experience could similarly be qualified. Counsel and judges must satisfy themselves that collectively, the proposed expert meets the expertise bar by evaluating stated qualifications. This is why a properly drafted and informative CV is essential in this process.
Setting yourself up for success
As a prosecutor, I tendered hundreds of people as expert witnesses before the court in many fields of expertise. In every case, I was satisfied that the proposed witness had amassed sufficient education, training, experience, and skill to be classified as an expert witness. In every case, the witness was qualified as an expert witness. This was not because of any skill on my part, but rather because the court saw the same thing I saw in the proposed expert – demonstrable expertise.
Setting yourself up for success involves a robust showing of demonstrable expertise. What counsel and the court look for is evidence that your CV is reflective of the things an expert should have listed and that you do the things that an expert does. Some examples:
• A detailed listing of your current professional obligations – what should be evident to the reader is that you already do the work that is being presented to the court.
• Substantive course work – the in-depth courses that an expert would be expected to have listed must be completed.
• Ongoing short courses – attending short (usually online) courses are a useful of way of keeping current on selected aspects of software, methodology, new research, etc.
• Certifications – if it is expected that someone in your area of expertise has specific certifications, then you should have those. Note that having a certificate is not the same as being certified. The former is piece of paper, the latter is a robust process.
• Active case work – counsel and the court want to see that you are already doing relevant case work.
• Instruction – showing that you provide some instruction in your area of expertise, while not necessary, is a helpful entry.
• Professional association memberships – if there are such organizations in your area of expertise, you should be part of them.
If your CV provides the level of detail listed above, then it will not be difficult for counsel and court to appreciate that you are an expert and that you are poised to assist in the search for the truth as an expert witness. Your mission therefore is to ensure that you have the qualifications needed to be so considered.