When to Conduct Voir Dire of Expert Witnesses

Challenging an expert's qualifications is much more complicated when a jury is the trier of fact. As a general proposition, unless there exists the rare situation where a witness is almost certain to be disqualified, it is usually more prudent to hold off attack on qualifications until cross-examination of the expert. The decision whether to voir dire an expert before the proponent's direct examination or whether to wait until cross-examination is a difficult one, and the determination must be made on a case-by-case basis.

Why Voir Dire Prior to Direct Examination

One of the primary advantages of conducting voir dire prior to direct examination is to preemptively discredit the expert before he or she attempts to render an opinion in the case. If the jurors are skeptical of the expert's qualifications, they will place less weight on his or her testimony during direct examination and may even tune the expert out altogether. An additional advantage is that it disrupts the natural flow of the questioning. If the proponent opts to tender the witness as an expert at the end of presenting qualifications, this advantage is lost. However, where the proponent goes directly from presenting qualifications to direct examination, an objection and request to voir dire can serve to break up the expert's testimony. In these circumstances it may be difficult to determine the appropriate point to interject a voir dire. Most good trial lawyers will weave a general education of the medical issues involved in the case into the qualifications examination. The cross-examiner will need to be alert for the question that crosses the line to substantive opinions.

Conducting voir dire prior to direct examination may also serve to fluster the expert witness during his or her testimony. Because the voir dire process is often perceived as out of the ordinary, it can throw off the inexperienced expert. It may also serve to put the expert in a defensive mindset before he or she gives presumably well-prepared testimony on direct examination.

Finally, the best thing that can come out of the voir dire process is for the judge to exclude the expert from testifying altogether, or in the alternative, to limit the areas in which he or she is permitted to testify.

Disadvantages

Despite the seemingly numerous advantages of conducting voir dire prior to direct examination of an expert, the disadvantages usually predominate. The primary criticism of the voir dire process is that the judge will almost always find the witness qualified to testify as an expert and will rarely limit or exclude the expert's testimony altogether. Not only is the challenge usually unsuccessful, but it can also serve to bolster the expert's credibility in the eyes of the jury. The judge may rule in front of the jury that the expert is qualified. Alternatively, the judge may instruct the expert witness to continue with his or her testimony, thereby deeming the witness an expert qualified to present testimony. Either way, the expert may be viewed as having received a judicial “stamp of approval.” Instead of permitting the jurors to form their own opinions as to the expert's qualifications, the judge lends the expert extra credibility by deeming him or her an expert.

Because the voir dire process is unusual, it can also serve to pique the interest of the jurors and induce them to pay even closer attention. Attacking the expert prior to cross-examination may cause the jurors to wake up just in time to watch the judge dub the witness an expert. Once the proffered expert has won, so to speak, the jury may be less critical of him or her than they would typically be.

When an attorney opts to voir dire the witness, there is always a risk that the jury will view the challenge as argumentative and potentially hostile. The opposing party should always take care to avoid the appearance of confrontation. Otherwise, the jurors may perceive the voir dire process as a needless attack on the expert, as a waste of time, or as a desperate attempt to delay the inevitable.

The voir dire process essentially assures that the presenting attorney will reemphasize the expert's qualifications upon reexamination and thus go over the expert's strongest areas more than once. Not only does the proponent have the opportunity to dwell on the expert's strengths, but some courts have held that where there is voir dire, the opposing party is precluded from further cross-examining the witness on his or her qualifications. John M. Kobayashi, Killing Them Softy with Your Song, Preparation and Trial of a Toxic Tort Case 1988 (Nov. 1, 1988) (Litigation and Administrative Practice Course Handbook Series), available at Westlaw 363 PLI/Lit 37, 72.

Because challenges to an expert's qualifications are usually unsuccessful, the opposing party must take care not to exhaust all information pertaining to the witness's qualifications during voir dire. The opposing attorney will want to save some questions ' or ammunition, so to speak ' solely for cross-examination, and avoid needlessly prolonging the voir dire process. Saving some material for cross-examination will serve to reinforce any doubts pertaining to the expert's qualifications that the jury or judge may have formed.

Avoiding the Dangers

Many of the dangers presented by conducting voir dire in the presence of the jury can be avoided by requesting that it take place outside the presence of the jury. The jurors are unlikely to know exactly what happened and are less likely to draw a negative conclusion if the expert continues to testify after an objection and adjournment. However, even if voir dire takes place outside the presence of the jury, the expert will be more prepared and better able to deal with qualification questions once back in the presence of the jury. This is especially true where the expert is further helped by the proponent's re-direct. Whether the opposing party is permitted to decide if voir dire is to take place inside or outside the presence of the jury is typically within the judge's discretion. The authors believe the advantages to conducting voir dire in the presence of the jury outweigh the disadvantages, and typically request an open voir dire when one is warranted.

If the judge requires that voir dire take place outside the presence of the jury, or if the opposing party requests the same, then the opposing party should take special care to preserve his or her right to go over the witness's qualifications again in front of the jury after the determination has been made. The opposing party would be wise to ask the judge about this concern prior to voir dire, otherwise, the jury may hear the witness's qualifications but never hear his weaknesses.

Some authors have suggested that if the proffered expert is deemed qualified and the judge declares the witness to be an “expert” in the presence of the jury, the opposing attorney should consider making an objection. If he or she chooses to object, the opposing attorney could argue that the judge's ruling served as an endorsement of the witness and unfairly bolstered the expert's credibility. Michael R. Schneider, Esq. and Christopher S. Skinner, Esq., Evidentiary Issues, Trying Drug Cases in Massachusetts, Ch. 9, p. 19 (Mass. Continuing Legal Educ., Inc. June 1999).

Similarly, it has been suggested that opposing attorneys consider objecting based on the court's overstepping its role in instructing the jury as to matters of law and testimony and incorrectly instructing the jury as to a matter of fact. Id.

If a proffered witness is permitted to testify as an expert, the opposing attorney should be sure the expert does not offer testimony pertaining to areas beyond which he or she was qualified as an expert. A common mistake made by trial attorneys is to allow the opposing expert free rein once a challenge to qualifications is unsuccessful.

Distinction Between Voir Dire and Cross-Examination

It is important to remember the distinction between voir dire and substantive cross-examination when deciding on the questions to be asked. The focus of voir dire is to show the judge that the witness does not meet the minimum requirements of state or federal law to be qualified as an expert. Questions as to a witness's credibility or questions as to the impressiveness of a witness's qualifications should be saved for cross-examination if a challenge to the witness's qualifications fails. For example, questions relating to society and association memberships, publications, most questions pertaining to a lack of hands-on experience, and questions demonstrating that the proffered expert has failed to obtain the highest level of obtainable schooling in the relevant area should be saved for cross-examination.

Last month, we discussed tactical considerations when challenging expert witnesses' qualifications. This month, we focus on the optimal time to conduct voir dire.

After the expert's proponent has presented the expert's qualifications, the opposing party has three options: 1) waive any objection to the witness being qualified as an expert, 2) object and state the grounds of the objection, or 3) ask to voir dire the witness as to his or her qualifications. In the vast majority of states, the opposing party must be afforded the opportunity, if he or she so requests it, to cross-examine the witness on the question of his or her qualifications before discretionary determination of the admissibility of expert testimony from the witness is made by the trial court and before the witness's direct examination.

In a non-jury trial, challenges to an expert's qualifications are typically more effective when addressed during voir dire instead of during cross- examination. This is true in bench trials because judges are more sophisticated triers of fact and more fully understand the purpose of voir dire and the importance of the expert's qualifications. As will become clear below, most of the justifications for withholding questioning on qualifications until cross-examination do not apply in a bench trial setting.

Challenging an expert's qualifications is much more complicated when a jury is the trier of fact. As a general proposition, unless there exists the rare situation where a witness is almost certain to be disqualified, it is usually more prudent to hold off attack on qualifications until cross-examination of the expert. The decision whether to voir dire an expert before the proponent's direct examination or whether to wait until cross-examination is a difficult one, and the determination must be made on a case-by-case basis.

Why Voir Dire Prior to Direct Examination

One of the primary advantages of conducting voir dire prior to direct examination is to preemptively discredit the expert before he or she attempts to render an opinion in the case. If the jurors are skeptical of the expert's qualifications, they will place less weight on his or her testimony during direct examination and may even tune the expert out altogether. An additional advantage is that it disrupts the natural flow of the questioning. If the proponent opts to tender the witness as an expert at the end of presenting qualifications, this advantage is lost. However, where the proponent goes directly from presenting qualifications to direct examination, an objection and request to voir dire can serve to break up the expert's testimony. In these circumstances it may be difficult to determine the appropriate point to interject a voir dire. Most good trial lawyers will weave a general education of the medical issues involved in the case into the qualifications examination. The cross-examiner will need to be alert for the question that crosses the line to substantive opinions.

Conducting voir dire prior to direct examination may also serve to fluster the expert witness during his or her testimony. Because the voir dire process is often perceived as out of the ordinary, it can throw off the inexperienced expert. It may also serve to put the expert in a defensive mindset before he or she gives presumably well-prepared testimony on direct examination.

Finally, the best thing that can come out of the voir dire process is for the judge to exclude the expert from testifying altogether, or in the alternative, to limit the areas in which he or she is permitted to testify.

Disadvantages

Despite the seemingly numerous advantages of conducting voir dire prior to direct examination of an expert, the disadvantages usually predominate. The primary criticism of the voir dire process is that the judge will almost always find the witness qualified to testify as an expert and will rarely limit or exclude the expert's testimony altogether. Not only is the challenge usually unsuccessful, but it can also serve to bolster the expert's credibility in the eyes of the jury. The judge may rule in front of the jury that the expert is qualified. Alternatively, the judge may instruct the expert witness to continue with his or her testimony, thereby deeming the witness an expert qualified to present testimony. Either way, the expert may be viewed as having received a judicial “stamp of approval.” Instead of permitting the jurors to form their own opinions as to the expert's qualifications, the judge lends the expert extra credibility by deeming him or her an expert.

Because the voir dire process is unusual, it can also serve to pique the interest of the jurors and induce them to pay even closer attention. Attacking the expert prior to cross-examination may cause the jurors to wake up just in time to watch the judge dub the witness an expert. Once the proffered expert has won, so to speak, the jury may be less critical of him or her than they would typically be.

When an attorney opts to voir dire the witness, there is always a risk that the jury will view the challenge as argumentative and potentially hostile. The opposing party should always take care to avoid the appearance of confrontation. Otherwise, the jurors may perceive the voir dire process as a needless attack on the expert, as a waste of time, or as a desperate attempt to delay the inevitable.

The voir dire process essentially assures that the presenting attorney will reemphasize the expert's qualifications upon reexamination and thus go over the expert's strongest areas more than once. Not only does the proponent have the opportunity to dwell on the expert's strengths, but some courts have held that where there is voir dire, the opposing party is precluded from further cross-examining the witness on his or her qualifications. John M. Kobayashi, Killing Them Softy with Your Song, Preparation and Trial of a Toxic Tort Case 1988 (Nov. 1, 1988) (Litigation and Administrative Practice Course Handbook Series), available at Westlaw 363 PLI/Lit 37, 72.

Because challenges to an expert's qualifications are usually unsuccessful, the opposing party must take care not to exhaust all information pertaining to the witness's qualifications during voir dire. The opposing attorney will want to save some questions ' or ammunition, so to speak ' solely for cross-examination, and avoid needlessly prolonging the voir dire process. Saving some material for cross-examination will serve to reinforce any doubts pertaining to the expert's qualifications that the jury or judge may have formed.

Avoiding the Dangers

Many of the dangers presented by conducting voir dire in the presence of the jury can be avoided by requesting that it take place outside the presence of the jury. The jurors are unlikely to know exactly what happened and are less likely to draw a negative conclusion if the expert continues to testify after an objection and adjournment. However, even if voir dire takes place outside the presence of the jury, the expert will be more prepared and better able to deal with qualification questions once back in the presence of the jury. This is especially true where the expert is further helped by the proponent's re-direct. Whether the opposing party is permitted to decide if voir dire is to take place inside or outside the presence of the jury is typically within the judge's discretion. The authors believe the advantages to conducting voir dire in the presence of the jury outweigh the disadvantages, and typically request an open voir dire when one is warranted.

If the judge requires that voir dire take place outside the presence of the jury, or if the opposing party requests the same, then the opposing party should take special care to preserve his or her right to go over the witness's qualifications again in front of the jury after the determination has been made. The opposing party would be wise to ask the judge about this concern prior to voir dire, otherwise, the jury may hear the witness's qualifications but never hear his weaknesses.

Some authors have suggested that if the proffered expert is deemed qualified and the judge declares the witness to be an “expert” in the presence of the jury, the opposing attorney should consider making an objection. If he or she chooses to object, the opposing attorney could argue that the judge's ruling served as an endorsement of the witness and unfairly bolstered the expert's credibility. Michael R. Schneider, Esq. and Christopher S. Skinner, Esq., Evidentiary Issues, Trying Drug Cases in Massachusetts, Ch. 9, p. 19 (Mass. Continuing Legal Educ., Inc. June 1999).

Similarly, it has been suggested that opposing attorneys consider objecting based on the court's overstepping its role in instructing the jury as to matters of law and testimony and incorrectly instructing the jury as to a matter of fact. Id.

If a proffered witness is permitted to testify as an expert, the opposing attorney should be sure the expert does not offer testimony pertaining to areas beyond which he or she was qualified as an expert. A common mistake made by trial attorneys is to allow the opposing expert free rein once a challenge to qualifications is unsuccessful.

Distinction Between Voir Dire and Cross-Examination

It is important to remember the distinction between voir dire and substantive cross-examination when deciding on the questions to be asked. The focus of voir dire is to show the judge that the witness does not meet the minimum requirements of state or federal law to be qualified as an expert. Questions as to a witness's credibility or questions as to the impressiveness of a witness's qualifications should be saved for cross-examination if a challenge to the witness's qualifications fails. For example, questions relating to society and association memberships, publications, most questions pertaining to a lack of hands-on experience, and questions demonstrating that the proffered expert has failed to obtain the highest level of obtainable schooling in the relevant area should be saved for cross-examination.