Nonetheless, courts throughout the country generally follow a three-prong analysis when deciding whether an expert should be disqualified from testifying based on his previous relationship with the opposing party. Surprisingly, there is scant case law regarding expert disqualification, as it is often seen as a drastic last measure. In order to successfully object to an expert’s testimony on these grounds, the moving party needs to establish that the expert had a previous, confidential relationship with the adversary, that the party disclosed privileged information to the expert, and that there is a public interest in excluding the testimony. At which point, an objection on conflict grounds would be appropriate. However, it is possible that an expert’s past associations or affiliations are not fully disclosed until he is testifying. Ideally, potential conflicts of interest are addressed prior to trial. 3) An Unwaivable Conflict ExistsĬonflicts of interest oftentimes arise when an expert has an ongoing duty of loyalty to the opposing party, such as being a former employee, consultant, or expert for the other side. While the exact objections raised are dependent upon the specific qualifications (or lack thereof) of the witness, the voir dire process presents opposing counsel their first opportunity to expose the weaknesses in the witness’ credentials before a jury. After the preliminary inquiry is complete, opposing counsel has the opportunity to question the witness’ qualifications and object to the witness if necessary. A witness should be qualified through “knowledge, skill, practical experience, training, education, or a combination of these factors” and most importantly, be competent in the subject matter at hand. At the beginning of an expert’s direct examination, counsel typically questions the witness about their educational background, work experience, training, and any other factor that goes to his qualifications within his specific field. The purpose of the voir dire process is to establish the expert’s qualifications before the jury. 2) The Expert is Not Sufficiently Qualified to Pass the Voir Dire Process Likewise, if an expert is testifying to knowledge that more rightfully falls under the strictures of lay opinions, it is important to object accordingly. Because the admissibility of expert testimony is, in many ways, more lenient than that of lay testimony, it is critical to object to any witness offering testimony beyond the scope of their designation. But sometimes, a lay witness’ opinion is presented under the guise of an expert, or vice versa. Unlike a lay witness, an expert’s opinion need not be based on personal observation. Because lay opinions must rely on facts personally observed, a witness offering lay opinion testimony must show that their opinion is based on personal knowledge, rationally related to the facts, and is helpful to the jury. In other words, a lay witness’ testimony needs to be based on first-hand knowledge or observation that is important to understanding a fact at issue, opposed to scientific knowledge on which an expert’s opinion is based.
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