“Red Flags” to Look for in Expert Witnesses
Expert witnesses exist in the courtroom as valuable resources of knowledge, and with such expertise may alter the verdict of a given case if the expert witness is persuasive, or not persuasive enough. As proof, the 6th U.S. Circuit Court of Appeals described what it called the “red flags” a trial judge should look for when certifying an expert witness. And if judges are watching for these, you can be sure attorneys should too!
In its review of a case on appeal, the 6th Circuit noted that the Supreme Court’s decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), requires the trial judge to evaluate ‘whether the reasoning or methodology underlying the testimony is scientifically valid.’
The 6th Circuit mentions that judges should be mindful of these red flags that could identify potential weaknesses in an expert witnesses reasoning:
“anecdotal evidence, improper extrapolation, failure to consider other possible causes, and, significantly, a lack of testing.”
“Red flags that caution against certifying an expert include reliance on anecdotal evidence, improper extrapolation, failure to consider other possible causes, lack of testing, and subjectivity. … In addition, if a purported expert’s opinion was prepared solely for litigation, that may also be considered as a basis for exclusion.”
Judges can challenge an experts reliability to provide testimony, and if they find that an expert is not qualified or objective enough, the expert witness in question will not be able to be a part of the case in trial. This point is significant for attorneys looking to hire an expert witness for a case, and can even be embraced by deposing counsel. Attorneys can make more educated decisions when hiring experts by knowing their past experiences in trial, the success of their testimony, or even lack of testimony.
Courtroom Insight was created for attorneys to learn about the history of an expert witness from reviews posted by colleagues, along with profiles highlighting the experts credentials and information about litigation experience. The reviews assist attorneys in finding these red flags before a judge challenges them in court, and can clue opposing counsel of weaknesses in an expert’s methodology before deposing the expert in trial.
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