Over the past few years, I have had the opportunity and challenging experiences to participate in legal proceedings as a Firearms Expert Witness. I am not an attorney, am not practicing law, and am not admitted to any Bar, but have occasionally passed by some. Seriously however, I have been college-educated in several legal subjects; planned, participated, and testified in practical legal cases; taught university business law for about eight years; law enforcement trained in shoot-no shoot practical deadly-force scenarios; and served as Director of Legal Affairs for an organization.
Recognize and Learn More: Don’t Know What Don’t Know
So, I thought I knew the machinations of legal trials, protocols, testimonies, the evidence discovery procedure, and the court process. I remember for a certain lawsuit that I believed beyond any doubt whatsoever that I was thoroughly prepared, had the facts and evidence ordered, and my testimony was going to be right on point and would quickly end the proceedings. Wow, was I wrong! There are a lot of uncertainties. I recognized how much I did not know and some things I needed to learn. Afterwards I thought how in the world would they interpret the situation that way and disregard one of my salient points of testimony and not understand my opinion. Well, I was wrong and learned my first lesson. I have learned a lot, still have more to learn, and want to share some of my interesting lessons learned about Expert Witnesses and their involvement and testimonies in trials, hearings, court cases, and firearms lawsuits. There are eight lessons learned.
As a foundation for Expert Witness legal involvement and testimony, there are basic legal definitions, goals, roles, types, and other topics about Expert Witnesses.
Definition of an Expert Legal Witness
An Expert Witness is a person with extensive experience or knowledge in a specific field or discipline beyond that expected from a layperson and generalities. An Expert Witness is a person with specialized skill sets whose opinion may help a jury make sense of the factual evidence of a case.
Major Function of an Expert Legal Witness
The major function of an Expert Witness is to express their independent expert opinion based on the existing evidence and substantiated by supporting facts and experiences. And to do so very succinctly, clearly, and directly to the point. Recognize that an expert can be employed in different capacities and in various venues at arbitrations, tribunals, courts, hearings, and in litigations.
Another function of Expert Witness testimony is for the expert to teach and help the jury and legal councils to more fully understand an involved, technical, or complex topic in which he is an expert. This requires the expert to break down all of the jargon and industry terminology so that the jury and everyone else can truly understand the issue, evidence, and testimony. The expert must be able to communicate clearly in a non-technical manner. Miscommunication has been the undoing of many an Expert Witness because it can be difficult to succinctly explain a concept that they otherwise easily understand. I have experienced a testimony where an expert got too technical and communicated far more in specific technical, specialized terms than he needed to. He provided more details, examples, information, technical data, and explanations in a certain professional field than were necessary in order to help answer a question or help others understand. It actually resulted in confusion and hurt rather than helped the case. So, the witness should directly focus on one specific issue at a time. In this case, it confused the jury because the expert rambled on in depth, without a clear direction and did not provide concise, straight-forward, clear non-technical explanations and justifications for his opinions.
Types of Witnesses
Basically, there are two types of witnesses in our U.S. legal system: a Lay Witness and an Expert Witness. A Lay Witness is a general witness that usually confirms or speaks in ordinary ways to just one fact or piece of evidence that they observed or somehow became aware of. They speak in broad, non-specific language and terms. A Lay Witness cannot give an opinion about any topics that require special knowledge like an Expert Witness, who testifies with their opinion based on sufficient facts or data from education, training, technical experiences, or learned and reliable details, principles, methods, within their area of proven expertise.
Medical Expert Witnesses are usually the most frequently used and common kind. They are most commonly found at medical malpractice trials and violent crime trials, but they can testify in any case where their expertise is needed.
Here are just some of the areas of expertise for Firearms Expert Witnesses. These individuals have the expertise to consult, testify, and provide insights on matters including:
- Types, specifications, and features of firearms, pistols, and revolvers
- Ammunition types, properties, projectile trajectories, and ballistics
- Firearms safety rules and safe techniques
- Firearms training subjects: fundamentals and advanced topics
- Use of deadly force
- Threat assessment and situational analysis
- Gun laws- Federal and State
- Self Defense and personal protection guidelines and acceptable tactics
- Firearms fundamentals and basics of proper shooting and handling guns
- Firearms human factors, psychology and physiology of behavior in critical incidents
- Trigger control, sight alignment, and sight picture
- Concealed carry principles, proper techniques, and accepted guidelines
Examples of Firearms Expert Witnesses
An Expert Witness, for example, could be a Blood Spatter Analyst who can testify about the type of weapon used to commit a murder or crime. Using this information, the defense can then demonstrate that the defendant did not commit the crime for which he is being charged. Another example would be a Ballistics Technician who can present research data to show proven muzzle velocities, muzzle energies, or typical penetration depths for a certain caliber and type of cartridge. Still another example, is a Concealed Carry Instructor who can present proper strategies, tactics, and techniques of concealed carry and self-defense actions, based on his many years of directly-related training beyond the basics, teaching advanced concealed carry classes for over twenty years, and writing a nationally-recognized textbook used by instructors in various areas of expertise.
There are also non-testifying experts that aid the attorney and may be present at the trial or hearing to help in formulating, interpreting, and answering questions of the opposing Expert Witness and Lay Witness, or attorney. A non-testifying expert can easily withdraw from a case, but not the testifying Expert Witness. A non-testifying expert can change roles and can become a testifying expert before the scheduled expert disclosure date.
Expert Witness opinions and testimony can significantly alter the outcomes of certain cases. Depending on the type of expert, experts can provide information that can help strengthen the case for either the prosecution or the defense. Realize that just because an expert testifies, that does not guarantee a favorable outcome for the party who called the witness. Sadly, some experts are not prepared, may exaggerate their experiences and training, and want just a paycheck, so give testimony that is weak or inaccurate and not properly supported.
Establishing An Expert Witnesses Qualification
An Expert Witness must first have their credentials and competency in the relevant field examined and verified. Are they qualified for their specific role, testimony, and opinion? The opposing attorney is permitted to conduct a “voir dire” of the witness to challenge the witness’s qualifications. Voir dire is French for “to speak the truth.” And this process permits questioning by either the judge or an attorney to determine their competence to testify and their suitability for service.
If qualified by the court, then the expert may testify in the form of an opinion. The testimony must be based upon sufficient facts or data, be the product of reliable principles and methods, and the witness must apply the principles and practices reliably to the facts of the case.
The Role of the Federal Rules of Evidence and Article VII
While different jurisdictions and states have different requirements for an Expert Witness, there are some general guidelines regarding testimony.
Expert Witness testimony in federal courts is governed by Article VII of the Federal Rules of Evidence. Federal judges determine the qualification and credibility of Expert Witnesses in a pre-trial hearing, called a “Daubert” hearing.
Daubert Hearing for a Challenge
Parties can examine and challenge the expert in open court to understand and develop his/her testimony for purposes of evaluating its admissibility. The hearing is limited to the issues specified and raised in the Daubert motion, unless the Court indicates otherwise. The concept of scientific reliability is know as the Daubert test. A Daubert motion may seek to exclude a presentation to a jury. It is named for the classic Supreme Court case, Daubert versus Merrell Dow Pharmaceutical, Inc. in 1993. This case held that the Federal Rules of Evidence, Article VII, provide the standard for admitting scientific expert testimony in a federal trial. In considering witnesses’ qualifications, judges may consider information that is not admissible as evidence. Before trial, all experts must prepare a report summarizing their analysis, reasoning, and conclusions, and share the report with all other parties. This allows other parties to effectively cross-examine the expert.
Rule 702 of the Federal Rules of Evidence
Experts may testify on any subject within their area of expertise, so long as their testimony will assist the jury, per Rule 702. Expert testimony is not limited to matters beyond the understanding of the ordinary juror. For example, in a shooting case, people who saw or heard the shooting may have relevant information to testify how many shots were fired, but they cannot testify about the path of the bullet because answering this type of question requires special knowledge, education, or training. Only an expert who has this specific knowledge and qualifications would be allowed to answer this question and give their opinion.
Rule 702 strictly outlines the admissibility standards of experts and they must satisfy four primary elements as defined in Rule 702.
A witness who is qualified as an expert may only testify in the form of opinion or otherwise if they satisfy all of the four primary requirements as defined in Rule 702.
Four Primary Requirements of a Reliable Expert Witness
- 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;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
NOTE: The expert’s knowledge must be above and beyond the knowledge of the jury. The expert does not have to be the best in the field, nor have all of the facts regarding the case, as long as his or her experience is relevant. He or she must provide information that is new and not obvious to the jury, making certain that there is no analytical gap in their reasoning.
Expert Witness Fees
An Expert Witness is a very helpful and valuable person and can make or break a case. And current SeakExperts.com guidelines say that most expensive witnesses are frequently the most effective. When lawyers try to hire a less expensive expert, they often discover that they get what they pay for. This is not the time to be frugal.
Expert Witnesses who mostly testify for defendants charge more than those who testify for plaintiffs more frequently. And the guidelines say that those called in to testify for plaintiffs are more likely to demand an upfront retainer. At this time, Expert Witness fees range from $200 to $2,000 an hour.
Here are some current national guidelines offered by SeakExperts.com:
- 74% of Expert Witnesses require an up-front retainer. The median initial retainer fee is $2,000;
- The median hourly fee for file review/preparation for all non-medical witnesses is $245/hour, (medical witnesses = $350/hour;)
- The median testimony hourly fee for non-medical witnesses is $275/hour, (medical witnesses = $500/hour;)
- On average, witnesses who testify mostly for defendants command higher fees than witnesses who testify mostly for plaintiffs;
- Almost half (47%) of witnesses require a signed retention agreement prior to initiating work on a case;
- 53% of all witnesses have a cancellation policy whereby they retain all or a portion of a deposition or trial appearance fee for cancellations made within a certain specified time prior to the scheduled date;
- 33% of all witnesses charge a minimum number of hours for testimony.
Can Expert Witnesses Be Sued? An Example Lawsuit
Expert Witnesses can be sued and held accountable by the court for not only their opinion, but also for other reasons, like an opinion that others believe is biased, or negligently formed, or not fully substantiated. An example is Professor Cornell (UCLA and Caltech), an Expert Witness, who was sued for $30 million (plus $5.5 million in interest) after what some claim was a biased opinion. I have explained that a retained Expert Witness is obligated to present an unbiased, supported, and factual analysis of a case’s key issues, based on their knowledge, education, and/or business or industry expertise. However, a retained witness does not have the right to purposefully concoct erroneous opinions out of spite or a grudge. Some have learned this the hard way.
According to the Los Angeles Times in 2019, ”A Caltech expert allegedly ruined his client’s $30-million lawsuit by hiding his grudge against the other side.” A UCLA and Caltech professor’s expert appraisal of AOL stock in a valuations case was discredited by the judge and the judge questioned his impartiality. The professor’s secret biases and ulterior motives to work as an expert are being called into question. The professor was retained at $1,050 an hour plus expenses. Some state that there are no broad lessons to be learned from this case, except that if you are an Expert Witness and really do not believe in your client’s case, do not say that to anyone, especially in a traceable email. And remember that witnesses must adhere to ethical codes of conduct for their fields, e.g. the American Medical Association’s Code of Ethics applies to both physicians and to their work as medical experts. When a witness submits his testimony and opinion, it is subject to cross examination and there can be resulting damages. Litigation is always a possibility.
Expert Witness testimonies and opinions significantly affect court outcomes. There are definite lessons to be learned in general about serving as an Expert Witness and also specific guidelines and behaviors to follow. There is no such thing as a slam-dunk win in any court case, no matter how prepared you are. Witnesses have a responsibility to apply their expertise to give a justifiable and supported professional opinion. They also have a responsibility to teach and help the jury and judge understand the case without overwhelming jurors and others with technical, complex language. An Expert Witness’s opinion and testimony must be based on sufficient facts or data and reliable, proven, and specific principles or methods, based on education, training, and/or technical experiences. It is important to know and follow the Federal Rules of Evidence and to know the four requirements of a reliable Expert Witness. Be aware that when a witness submits his testimony and opinion, it is subject to cross examination and there is always a possibility of litigation and lawsuits. So, be objective and ethical in your conduct and opinions.
Note: This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek guidance from your personal trainer or an expert knowledgeable about your situation. This article should not be relied upon as accurate for all situations, individuals, and shooters. The author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.
© 2023 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col. Ben Findley at ColBFF@gmail.com.