Business and Commercial Disputes By Harvey Binnall PLLC - 2018/01/09 at 09:25am
There are many factors to consider when deciding whether to hire an expert witness for your case. Before deciding whether you should hire an expert, you first must determine if you can hire one. Virginia case law limits the type of expert testimony that can be used as evidence at trial. You should consult an attorney for advice that is specific to your particular case, but here are five things that are important to know before hiring an expert witness:
- The subject matter to which an expert can testify is limited. Experts may only testify to information about which “a person of normal intelligence and experience cannot make a competent decision.” Swiney v. Overby, 237 Va. 231, 233 (1989). This means if a judge determines that, even without the aid of an expert, a reasonable jury member could understand the information, then the expert will not be allowed to testify.
- Expert testimony must be based in some fact. Although, on direct examination, an expert does not have to reveal the fact that he or she relied upon when reaching the expert conclusion, if questioned on cross-examination, the expert may be required to disclose such information. However, the expert will not be allowed to testify to his or her opinion if he or she cannot cite any existing data that was used to come to the conclusion.
- Information that an expert used as the basis his or her testimony does not have to be admissible at trial. There are many rules of evidence that govern the admissibility of evidence. Often times and for various reasons, the rules might prevent you from moving into evidence information that an expert relied upon when coming to his or her expert conclusion. However, in Virginia, an expert may give an opinion that is based on inadmissible information so long as that information is consistent with what he or she would normally rely upon when coming to a conclusion.
- The trial court judge’s ruling on the admissibility of an expert will rarely be overturned on appeal. If you are unhappy with the trial judge’s ruling on the admissibility of an expert, you can usually appeal his or her decision. However, the appellate court will only overturn the trial judge’s decision if it finds that the trial court abused its discretion. This means that the trial judge’s ruling will stand unless it is clear that it was an unreasonable decision.
- An expert can never testify to a “conclusion of law.” Conclusions of law can only be made by a judge. It is up to the judge, and the judge alone, to instruct the jury on the law. Therefore, an expert will generally be precluded from testifying about any conclusions regarding the status of the law.