Georgia law recognizes two types of witnesses: lay witnesses and expert witnesses. Lay witnesses can only testify about their personal experience, while expert witnesses can testify about matters within their field of expertise.
Common expert witnesses include medical experts, vocational rehabilitation experts, and accident reconstruction specialists, among others. Depending on the facts of your case, your use of an expert witness could be essential.
Testifying Witnesses vs. Consulting Witnesses
Lawyers and personal injury victims use expert witnesses in two ways—as testifying witnesses and as consulting witnesses.
You hire a testifying witness to, well, testify. If your claim matures into a lawsuit, there are certain rules you must follow:
- You must notify the opposing party that you plan to use the witness at trial.
- You must make your witness available for questioning at a deposition.
- During pretrial discovery, you must allow the opposing party access to your witnesses’ notes, opinions, and work product.
- At trial, you must present your witnesses’ qualifications to the court. The opposing party may object to your use of the witness. If so, the court will rule on the objection.
- At trial, you must allow the opposing party to cross-examine your expert witness.
Even if you never file a lawsuit, you can use the opinions of your expert witness as leverage during settlement negotiations.
A consulting witness does not testify, and you need not even notify the opposing party that you are using a consulting witness. In fact, none of the foregoing rules apply to consulting witnesses except under exceptional circumstances. So what is the purpose of hiring a consulting witness? There are several reasons, including:
- To instruct your attorney on complex specialized issues, such as cardiology in a medical malpractice case;
- To identify and counter possible defenses that the opposing party might rely on; and
- To help your attorney prepare legal documents, such as a lawsuit complaint, that require an advanced understanding of specialized subject matter.
You might also use a consulting witness as a backup testifying witness in case your original testifying witness backs out for some reason.
Qualifications of Expert Witnesses
How do you qualify your witness as an “expert”? Ultimately this is a subjective decision that a judge must decide. Common qualifications include:
- Academic degrees such as a Ph.D.;
- Publications in respected academic journals related to their field of expertise;
- State licensing;
- Professional awards; and
- Professional reputation.
An expert witness cannot testify in court without appropriate qualifications. There is no formula, however, for qualifying an expert witness. An expert witness might not need a Ph.D. to testify, for example, depending on the nature of their expertise.
The Daubert Standard
There is always a risk that a lawyer will call an “expert witness” who is actually a crackpot advocating a fringe scientific theory based on dubious reasoning. In response to this possibility, Georgia courts have adopted the Daubert standard to evaluate whether an expert witness’s reasoning is scientifically valid.
Under the Daubert standard, a court can determine whether expert testimony is admissible based on the following factors:
- Whether the theory or technique that the expert relies on has been tested;
- Whether it has been published in a peer-reviewed publication;
- Whether it has a high error rate (a disease detection method with a high rate of false positives might raise questions, for example);
- Whether there are enforceable standards controlling its operation; and
- Whether it enjoys widespread acceptance within the scientific community.
The decision on whether to accept an expert’s reasoning is based on the totality of the above-described circumstances.
The Professionalization of the Expert Witness Industry
The role of the expert witness has become professionalized. Many expert witnesses no longer practice their chosen field full-time, instead spending most of their time serving as witnesses. There are even expert witness agencies that you can use to locate an expert in a particular field.
The Credibility of a Professional Expert Witness
Expert witnesses charge money for their services. There is always the possibility that a jury will see a professional expert witness as a “hired gun” who has been bought and paid for by the party who hired them.
The opposing party will certainly make sure the jury knows that the witness is being paid. Normally, however, this doesn’t matter. The use of expert witnesses is routine in certain personal injury cases, such as medical malpractice and product liability.
Ironically, professional expert witnesses often make better witnesses than experts who are still practicing full-time in their field. The reason for this is that a typical professional expert witness has undergone cross-examination on many occasions. They know how to handle the pressure, and they know every rhetorical trick used by hostile attorneys to mislead a jury.
An Experienced Tifton Personal Injury Lawyer Can Help You Find the Right Expert Witness for Your Case
A seasoned Tifton personal injury lawyer will have developed strong relationships with expert witnesses in various fields. If you need an expert witness, odds are your lawyer knows an expert they have worked with before.
Are you in a tough financial spot? If so, that’s okay. As long as your claim is strong, you don’t need to worry about money. Since personal injury lawyers work on a contingency fee basis, you pay nothing if you lose. If you receive a monetary award or settlement, your legal fee amounts to a percentage of your total compensation. That puts you and your lawyer on the same side; they don’t make any money unless you do.
Seek Assistance from a Tifton Personal Injury Attorney
If you file a claim with an insurance company, your lawyer can talk to the insurance company on your behalf. A lawyer can also draft legal documents and represent you at trial if you decide to pursue a personal injury lawsuit.