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24 Pass It On: Newsl. Gov't & Pub. Sector Law. Div. 1 (2014-2015)

handle is hein.journals/passit24 and id is 1 raw text is: Experts and Opinions The Pitfalls and Possibilities of Expert Witness Testimony By Michelle Garcia and Nichole C. Patton any lawyers speak of the Law and Order effect; jurors expect dramatic events and witnesses and they are often cynical about the reliability of certain testimony and evidence. The heroes on TV are always right and moral, witnesses always provide the perfect piece, of evidence and the occasional misstatement of actual legal principles is part of the dramatic arc. The practical fallout of injecting the glamour of TV into the real-world courtroom is seen in the skepticism among jurors about scientific and quasi-scientific evidence, especially in the field of forensic science. Despite the Law and Order effect, expert witnesses are an invaluable part of the trial process. Lawyers use these wit- nesses to provide insight into complex subject matter. Expert witnesses aide the trier of fact in the explanation of special- ized research, technical concepts, scientific principles and often the interpretation of records or tests. Key factual disputes at trials can hinge on the opinion of expert witnesses; it goes without saying that experts can make or break a case. As prosecutors, we see experts used to great effect in the courtroom almost every day. But, we have also seen trials go horribly awry during expert witness testimony. Professional credentials and expertise can be dual-edged swords where a witness' ivory-tower credentials become a decisive voice for the opposing counsel. Lawyers cannot assume that what looks good on paper sounds good to a jury of one's peers. What are the determining factors in deciding which expert to use? It doesn't matter what your practice area is or if your expert is an airline pilot, an auto mechanic or an accountant, some basic considerations will help you prepare for the courtroom. Carefully review the Federal Rules of Evidence, Rule 702 or your analogous state law which governs qualifying witnesses. Most litigators will tell you, and we agree, qualifying a witness is not the difficult part of the process. Rule 702 can give you some guidance. It states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Together with Daubert v. Merrell Dow Pharmaceuticals, Inc.,' Rule 702 forms the basis for the process of admitting expert and scientific testimony into evidence.2 Some considerations will apply and doing a little research before deciding on an expert witness will prevent you from being blindsided at trial. 1. Background The qualifications of a witness will always be used at trial so know your witnesses'

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