Accordingly, his conversations with you and your attorney are generally protected. Because he is retained to assist in litigation, he becomes subject to and protected by various privileges and immunities. He is an advisor to you and your attorney. As a non-testifying expert, the expert actually becomes part of your legal team. The different functions also have significant legal consequences. The function of the non-testifying expert is to assist you and your attorney to better understand your case and better prepare for trial. The role of the testifying expert is to formulate an understandable opinion in order to help the trier of fact reach the same conclusion as the expert. To Testify Or Not To TestifyĮxperts perform two very important, related purposes and come in two forms: testifying and non-testifying experts. And he has to use that knowledge to form his opinion on the facts presented in the case. What does this all mean? Essentially, an expert witness has to know something that the average man on the street does not. Moreover, the witness must be qualified as an expert by knowledge, skill, experience, training or education. Instead, his testimony is admissible if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. Such a witness does not have to have firsthand knowledge of the facts which form the basis of his opinion: he does not need to have personally witnessed the car drive through the red light in order to form his opinion on whether the car was speeding. Conversely, a lay witness is barred from providing his opinion about whether the speeding car had a design defect.Īn expert opinion witness is very different. Thus, a lay witness can testify about whether he believes a car he saw drive through a red light was speeding at the time. This legalistic formulation means one thing: a lay witness may only provide his opinion about things which he has personally witnessed and about which the average, reasonable person could also form an opinion. Opinion witnesses fall into two categories: lay and expert.Ī lay opinion witness may only provide his opinion upon a demonstration of the following: that his opinion is rationally based on the perception of the witness, that his opinion is helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and that his opinion is not based upon scientific, technical or other specialized knowledge. Opinion witnesses provide their opinions about certain events to the trier of fact, such as a jury or to the court at a bench trial, in order to assist in resolving the case. Fact witnesses thus have an intimate and personal familiarity with the events about which they will testify. Expert witnesses fall into the latter.įact witnesses are those individuals who can provide testimony about those things of which they have firsthand knowledge: things they have heard, things they have seen, things they have said. What exactly is an expert witness? The law generally divides witnesses into two categories: fact witnesses and opinion witnesses. This knowledge can drastically change how a business proceeds with litigation. In light of this trend in modern commercial litigation, it is imperative that a business have a good understanding of the nature of expert witnesses, the services they can effectively provide, and the reasonable costs to expect for their services. Clearly, you need to be prepared to expect the unexpected: the need to hire an expert witness. However, it is becoming more and more likely that you will also have to retain an expert. Or even worse, your company has just been served with a summons and complaint in which the plaintiff has claimed damages for its business losses.Įither way, you have to get an attorney involved. Your company has decided that it must file a lawsuit against a former employee turned competitor in order to recover the business losses you have been suffering since his defection.
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