Expert Witness Testimony and Report Writing

written report (pt.3)

All statements of fact or conclusions based on scientific papers should be cited in the report and listed in an appropriate scientific format (the dates should reflect the most current scientific literature; it is important to include multiple sources for scientific support; any pertinent documents or pictures or significant evidentiary value can include in the appendix)

consulting expert (pt.2)

a consulting expert will not likely submit a written report or be required for courtroom or deposition testimony; it is important to note that a consulting expert is confidential and not disclosed to opposing counsel

Expert witness testimony and report writing (pt.1)

a veterinarian may be requested to become involved with a criminal or civil investigation (this may include performing a forensic clinical examination, forensic necropsy, collection of crime scene evidence, examination of medical records, or interpretation of other forensic information; in turn, the veterinarian may then be asked to give oral testimony or a written report (testimonial information may be restricted to observation of facts in the performance of their clinical duties or may be expanded to include the conclusion and opinions related to a forensic examination

written report (pt.1)

an expert may be requested for a written report to be submitted to counsel; should be: concise, descriptive and understandable to the layperson, no shorthand without definition or explanation; expert needs to be aware that there may be a mandate for them to appear in court to defend their report; recommended that the expert ask for a specific list of questions that the hiring attorney wants answered in the written report

daubert test

based on case law and it more commonly used in the lower courts (this standard is based on a trilogy of cases that in total form the basis and define the daubert standard); any party involved in the trying of a case at trial may raise a "daubert motion"--this challenge is to exclude the scientific evidence based on a lack of basis or may be challenged to the expert's opinion as to the lack of scientific expertise forming the basis of the opinion or testimony

risks, liabilities, and benefits of assisting the legal system (pt.4)

before forming an expert witness opinion, recognize that reviewing media or news footage may be a source prejudice; in some cases, expert witnesses are compensated for the time spent preparing a report, discussing a case, and preparation for testimony but never for their conclusions or opinions (recommended to have written contract); news media often follows and becomes involved in newsworthy animal abuse cases (as an expert witness, best response is "no comment" and then refer to someone else)

consulting expert (pt.1)

counsels an attorney on the scientific and medial facts of a case, without committing to testify in court or in a deposition; this expert will assist in preparation for discovery and deposition, including helping the attorney prepare questions for opposing witnesses

federal rules of evidence (FRE)

encompasses multiple scenarios that may arise with an expert's testimony

duties of an expert witness

exercise reasonable skill and care with respect to professional codes; maintain perspective with court's objectives; give independent opinions; confine opinions to the judicial matters directly related to the case; consider all material facts and literature; inform the court of any changes of opinion immediately; conform with all procedural and judicial rules and instructions

expert witness (pt.3)

expert witnesses are expected to discuss both the facts and opinions that are limited strictly to the case without bias; when consulting with an attorney, all oral communications are privileged (written evidence, correspondence, investigative report notes, and emails are required to be submitted to the opposing counsel for review); it is important to review and discuss the testimony one will give under oath with the hiring attorney (let the attorney know when the assessment of the evidence is beyond your expertise and that another expert may be required

general guidelines for expert witness (pt.1)

has an ethical obligation to assist in the administration of justice; fee should be contingent upon the outcome of the case; compensation should be reasonable and commensurate with time and effort; must not be an advocate or partisan for either party; should have recent substantive experience on the area of expertise; should be prepared for testimony

expert witness (pt.2)

once someone is declared an expert witness by the court, they are then allows to interpret evidence, render conclusions, and give opinions about the facts of the case; statements made by an expert witness will be used to help assess the significance and legal weight of the forensic and biomedical evidence within the scope of the trial; the expert witness may give facts that are both known to them personally and those derived through medical or scientific analysis and conclusions

risks, liabilities, and benefits of assisting the legal system (pt.3)

one must realize that many animal cruelty cases have a "high public emotional quotient" (vocal protests, high profile news coverage, and undesired press coverage); conflicts of interest are possible when the expert witness is local in a limited geographical area; always identify if the expert witness is associated with any company or individual either related to the plaintiff or defendant

expert witness (pt.1)

only considered an expert when acceptable to the judge and deemed an expert often limited to their field of testimony, as defined by the judge; a potential expert witness can be questioned and challenged by counsel as to their qualifications based on the submitted professional resume; after hearing opposing counsel's questions and follow-up, the judge may declare an individual an expert witness or simply declare the witness as a testifying witness

Expert witness testimony and report writing (pt.2)

oral testimony may occur in a variety of venues including a deposition at a lawyer's office or in a courtroom setting; testimony may be as a witness limited to the observed clinical facts and events or testimony may include clinical events, conclusions, and opinions as to the significance of the clinical facts; report writing may also be required and may be submitted to the court

general guidelines for expert witness (pt.2)

should have unbiased opinions; use opinions based on the medical literature; opinions based on experience should be clearly defined; should testify honestly and truthfully without excluding any relevant information; should avoid conflicts of interest, either actual or potential, with the client or attorneys; should protect the privacy of records and communications

rule 702

states that an expert witness is one who is qualified by knowledge, skill, experience, training, or education and this witness may give an opinion if the opinion will help the judge or jury better understand the evidence, testimony is based on sufficient facts or data, the testimony is based on reliable scientific principles and methods, and the expert has readily applied the principles and methods to the facts of the case

rule 701

states that if the lay witness it not testifying as an expert, then their testimony in the form of an opinion is limited to one that is rational based on the witness's perception, is helpful to clarify facts, understand the given testimony by the witness, and is not based on scientific or other specialized knowledge

guidelines for courtroom testimony (pt.1)

the expert witness should be aware of three important decisions that govern expert witness testimony: the frye test and dauber test--may be cited as guidelines for acceptance; both tests are based on case law and relate to the validity of scientific evidence, opinions, and testimony on the court; the federal rules of evidence (FRE) governs the scientific and expert witness testimony in federal court

written report (pt.2)

the expert witness would be wise to give a brief overview of their credentials and refer the reader to their resume in the appendix at the end of the report (this will be reviewed by opposition counsel and the judge and/or jury)

testifying or fact witness

the facts witness gives testimony of what was observed or gathered directly by the person offering the testimony (this may be before a judge, jury, or in a deposition); deposition are usually held at an attorney's office and may be requested by either side (often done to allow the attorneys to preview the information to be presented, to attempt to intimidate and challenge the expert, or to collect information that may disclose the legal strategy of the opposition; involves the attorneys on both sides, the witness, and the stenographer to record the proceedings

Expert witness testimony and report writing (pt.4)

the prosecutor or plaintiff's lawyer will attempt to discredit the client and any witnesses associated with the opposition (any statements or attempts to undermine a witness's education, credentials, or personal opinions must not be taken personally); many cases involving animal crimes require an understanding of animal behavior, internal medicine, pathology, toxicology, pharmacology, radiology, and surgery

Expert witness testimony and report writing (pt.3)

the role of any witness in court is to provide observations, facts, and evidence to the court; the role of an expert witness is to present evidence and opinions to the court in the context of current acceptable science and medicine (the interest is in the facts as presented by the collected evidence; the facts or evidence is gathered, examined, analyzed, and presented in an unbiased manner for the court or jury to make decisions)

risks, liabilities, and benefits of assisting the legal system (pt.1)

there are many considerations before entering into a relationship with a lawyer in the capacity of a consultant or expert witness; it is important to remember that courtroom testimony that is well founded in scientific fact and is without prejudice and bias is the best defense to being challenged; in many states there are laws requiring the reporting of animals abuse or cruelty; in some of these states there are also legal no-fault protection for those who report suspected abuse

guidelines for courtroom testimony (pt.2)

these standards have been set in attempt to eliminate unsubstantiated, unfounded, or biased "junk" science from being presented as fact; failing to be aware or follow these guidelines may expose the witness to assertions of bias and perjury, and could result in wholly or partially discredited testimony, and/or ruined professional reputation at a minimum and civil or criminal liability at the worst

frye test

this set of guidelines was one of the first in the u.s. and is considered to be "the general acceptance test"; any scientific evidence presented in court is accepted by virtue of its long established general acceptance in the scientific community (the test neither defines the length of time nor gives a definition to the term "general acceptance"'; the the frye standard is older, it is still referred to ins some courts as a standalone guidance or in combination with other statutes

risks, liabilities, and benefits of assisting the legal system (pt.2)

where there is legal protection for the reporting of suspected animal abuse, there may be other methods for professional protection (professional liability insurance); it is important to understand any limitations or concerns before assisting with an investigation; there have been incidents of retaliation against a reporting veterinarian both for reporting suspected abusive client and for not reporting animal cruelty