In any family law dispute, the probability of winning increases with the skillful presentation of evidence. Don’t fight a family law dispute in court without an experienced Draper Utah family lawyer. Evidence is information presented to a court to support or refute a case or a position in a lawsuit. Evidence may include oral testimony as well as tangible material such as documents, exhibits, and demonstrative aids. Evidence is critical to the outcome of a case, since courts decide verdicts based upon the evidence. However, not all evidence in a case is heard by the court; only evidence that is relevant and admissible plays a role in the outcome of a case.

Expert Witness

An experienced Draper Utah family lawyer will review the facts of your case and determine if you need to use an expert witness. Basically, an expert witness provides an unusual input into a trial. The general rule in a civil trial is that a witness may testify only as to what he or she has seen or heard.

In trial practice, this is an individual who assists trial counsel to prepare an expert witness for trial. In general, since they work with trial counsel preparing the case for trial, what they produce for a client is not subject to discovery. In the federal court system, discovery, the pre-trial process whereby the parties exchange information, specifically applies to expert witnesses. They generally do not apply to those working with the trial counsel, usually including a consulting expert.

While, in some cases, the emotions of the witness may be a subject for testimony, the average witness is not permitted to offer an opinion or to discuss an event which he or she did not actually see. The formation of an opinion, based on the facts in evidence, is traditionally the responsibility of the jury, or of the judge when there is no jury. The use of an expert witness is an exception to this rule. The reasoning for this exception is that some situations are so complex that an expert must be brought in to explain the significance of what is in evidence to a jury However, since the American common-law based system still places ultimate responsibility for the finding of facts with a jury, the expert comes in as another type of witness. That means the jury must evaluate the expert’s testimony, particularly his or her conclusions, as it would that of any other witness. The jury is not required to accept what the expert says as its own conclusion. Therefore, the jury must also be told the facts on which the expert’s opinion is based, as well as the special qualifications that the expert has to be able to draw the conclusion advanced.

How is Someone Qualified as an Expert Witness?

An expert witness is typically presented to the court by one of the parties. The party presenting the expert must satisfy the judge as to the following issues:

• that there is some specialized area of knowledge that will help the jury understand the case before it

• that this area has a reasonable foundation as the subject of activities such as formal research, academic courses, professional education or licensing, trade or professional groups

• that this area has a reasonable foundation as the subject of activities such as formal research, academic courses, professional education or licensing, trade or professional groups

The way this is usually done is by having the witness being offered as an expert directly testify as to these points. Then, the witness can be considered as qualified. At that point, the expert is permitted to testify on the matter before the court. This is done by having the attorney present the expert with specific facts.

The expert can offer his or her opinion as to the meaning of the offered facts. But it is still for the jury (or judge sitting in place of a jury) to determine whether or not to accept the testimony and opinion offered. The process does not end there. The opposing trial counsel has the right to do several things. They include:

• challenging that the area of testimony is a legitimate area for expert testimony

• arguing that the expert presented is not really qualified to draw a conclusion

• asking the expert questions based on different assumptions, to elicit different conclusions

• offering up opposing expert witnesses

An expert witness, at the time of a trial, is actually qualified by the court and must be requalified each and every time that person comes to a subsequent trial for the offering of expert opinion. This qualification by each trial judge takes place regardless of how many previous times the same individual has been court-qualified before or in other jurisdictions. Other witnesses, or experts who may be called as percipient witnesses, can testify without being qualified by the court, but only as to their personal knowledge or observed information related to the matter at hand.
The trier of fact (i.e., the judge alone, or the judge and jury) hears preliminary testimony from the proposed expert, elicited by the attorney presenting the case, as to the expert’s knowledge, experience, and training that demonstrate he knows more about his subject or field than does the average layperson. The qualifications of the expert can be challenged by opposing counsel, who will also be allowed to cross-examine the expert on any area of her background, training, education, or experience. The judge then will rule on that witness’s acceptability as an expert in this specific case. This challenge to a witness’s expertise can be in front of the jury or elsewhere.

This is a critical issue to be understood by science-oriented professionals, as most medical, scientific, or engineering professionals would generally be embarrassed or dismayed at calling themselves “experts.” A necessary realization, required by working expert witnesses, is that they do know more about their particular field than just about any other person who may be on a lay jury.

Witness Preparation

Witness preparation is critical in all legal cases. This doesn’t mean the testimony is changed or biased in any way, only that the person giving the testimony is a bit more familiar with what the conditions of the legal playing field will be prior to being asked to score a touchdown. Your Draper Utah family lawyer will prepare your expert witness for testimony.
It is not uncommon for some attorneys to take advantage of that intimidation factor when questioning witnesses of their own or when cross-examining those on the other side. Advantage is gained if the attorney can get an opposing witness to say things that are not representative of what he believes to be correct, or things that cause the witness to lose credibility when speaking. The skilled trial lawyer will try to take advantage of any aspect of a witness’s demeanor or lack of conviction when testifying. This is why the more experienced witnesses seem to have an easier time dealing with the rigors of cross-examination.

Just as the nature of an expert witness’s testimony varies, so does the role of the expert witness. In some cases, the expert witness is used to identify problems or defects in the testimony of fact witnesses. In other cases, expert testimony is necessary to meet the burden of proof in order to establish a claim or defense. At times, expert witnesses are used primarily to match the opponent’s experts and to add persuasive strength to the proponent’s claim or defense.

Although experts are most commonly identified with their role as testifying witnesses in deposition or at trials, they also can assist attorneys in the development of the case before trial. Lawyers may hire experts to evaluate the credentials and work of other experts. Experts also may assist lawyers in understanding the technical aspects of a case by reviewing records and documents produced by the parties and by identifying and evaluating issues in a case. In addition, experts can help formulate requests for documents and other information which may become admissible evidence, or they can prepare questions for direct and cross-examination of witnesses. Expert advice may be critical in avoiding a case being dismissed by the court before trial by establishing persuasive theories of causation which should be heard and evaluated by the jury.

Another important function of expert witnesses may be to conduct tests or experiments related to an element involved in the litigation and to prepare demonstrative evidence illustrating their conclusions and the basis for them. To do so, tests and experiments must be painstakingly and extensively planned, documented, and recorded. Experts must be able to defend each step of the testing and experimental process to explain how laboratory conditions relate to the actual facts and circumstances of the case.

Types of Experts

There are two types of experts: consulting and testifying. The distinction between the two is critical because it has an impact on the disclosure of information, thoughts, and processes. Consulting experts provide background knowledge and lend their expertise outside of the courtroom. A consulting expert is used as a resource in complicated and technical areas in which lawyers have little background, often instructing and guiding lawyers on unfamiliar subject matter. A consulting expert will not be called as a witness. Testifying experts, on the other hand, go beyond the support provided by consulting experts and ultimately assist the lawyers trying a case by providing testimony either in court or in depositions.

The distinction between a testifying expert and a consulting expert is important because the identity and opinions of testifying experts must be revealed to the opposing party in advance of trial if properly requested. This means the opposing side will have access to the experts and their records and, therefore, be better able to prepare a response Because of the distinct differences in rules between the two types of experts, the work of consulting experts and that of testifying experts should be kept separate. Successful lawyers strategically balance the use of testifying and consulting experts in order to protect their cases.

The Relationship between Lawyers and Experts

Draper Utah family lawyers expect experts to be confident, persuasive, and impartial, yet not boastful or contentious. They want experts who are firm, with strength of conviction. They need experts who will explain technical, complex matters in a way that the jury fully understands and to which jurors can relate. Lawyers also want experts with appropriate credentials to support narrowly tailored opinions that will serve the lawyers’ objectives at trial. While communication and teaching skills may be more important than credentials for a testifying expert, outstanding expertise and analytical ability may be more important than the ability to communicate and teach for a nontestifying, or consulting, expert. Thus, the lawyer’s expectations will change depending on how the expert will be used.
In turn, experts expect lawyers to provide a complete and thorough explanation of the case, the key issues and challenges, and the fundamental standards of proof from a legal perspective. They expect to be provided with all relevant information and documentation to which the lawyer is privy as soon as physically possible.

Lawyers should respect the ethics and professional integrity of the expert and not demand that opinions be slanted in order to bolster the case. Experts need lawyers to clearly describe and explain the interrelationships between their testimonies and those of other experts involved in the case so the experts can prepare to explain conflicts of opinion.

Experts also expect attorneys to educate them about the nature of the legal proceedings and vocabulary, as well as what is expected of the expert at each juncture. In a positive working relationship with an experienced Draper Utah family lawyer, an expert will be treated as a peer over the course of the case and will be actively involved in developing case strategy, based on the objective, impartial, and independent findings of the expert.

If you believe your family law litigation requires the services of an expert witness, speak to your family lawyer who is the best person to take a call.

Draper Utah Family Attorney Free Consultation

When you need legal help from a family lawyer in Draper Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you. We can help you with Divorce. Child Custody. Child Support. Adoptions. Prenups. Postnups. And Much More.

Ascent Law LLC St. George Utah Office

Ascent Law LLC Ogden Utah Office