How to Use an Expert Witness in Small Claims Court - dummies

How to Use an Expert Witness in Small Claims Court

By Judge Philip Straniere

Even in small claims cases, you may need the testimony of a witness who possesses some special knowledge or skill in order to prove your case. In the legal profession, such a person is known as an expert.

In most small claims cases, in fact in most civil cases, you have no need for an expert witness. The events and incidents that make up most of the small claims court calendar are common, everyday occurrences, which the judge hearing your case will have some knowledge about.

In certain situations, an expert witness is recommended; in the following situations, an expert is required:

  • If your case involves some knowledge, skill, or training beyond that possessed by the average person.

    For example, you claim that the defendant failed to properly repair your car’s transmission. You get another mechanic to look at your car, and he tells you that the defendant didn’t do the repair properly. You need the second mechanic to testify as an expert on the issue of whether the defendant made the repairs properly.

    You can’t testify yourself about what the second mechanic told you. This is considered hearsay and isn’t proper evidence.

  • If you’re suing for malpractice, which is negligence of a professional such as a doctor, dentist, veterinarian, lawyer, or accountant. These professions require special skill and training beyond that of the average person, and the legislature of each state sets forth standards for education and training to practice that profession

    Only an expert can give an opinion as to whether the defendant professional performed services that meet the community standard for that business.

  • If you need some unusual evidence to prove your case, you need an expert.

If you’re using an expert to testify, you have the burden of establishing the credentials of the witness so he qualifies as an expert. You need to establish any schooling or training he’s had, whether he’s published articles in professional journals, lectured or taught in his subject, been doing the job for a number of years, is licensed by any governmental agency, or is a member of recognized professional associations.

Sometimes this issue is easily eliminated if your opponent concedes that the witness is an expert, or if the judge asks the witness some questions and satisfies himself that the witness is an expert.

The economics of experts

The need to have an expert witness causes problems because the expert generally won’t testify for free, and you’re the one who has to pay him. In most cases, payment has to be made before the trial starts.

The problem with cases where expert testimony is required is that the cost of having an expert come to court to testify often exceeds the amount of damages you’re seeking or reduces your award so substantially that it won’t be worth it for you to even bring the suit. This is especially true in small claims court where the amount you can sue for is limited.

Keep in mind that the cost of the expert is not recoverable by you as part of your damages.

Also, you can’t just submit the report of the expert into evidence at the trial in an effort to save money. In effect, you’re trying to make the piece of paper become the witness. This isn’t allowed because your opponent has the right to cross-examine the expert not only on his credentials but also on his conclusions.

How to establish a witness as an expert

Can anyone be an expert? The answer is “maybe.” It’s possible to have someone who is not professionally trained in a particular area be classified as an expert.

However, you have to ask certain questions of that person so as to convince the judge of the person’s expertise, such as

  • How long the person has been doing a particular job

  • How many times the person has encountered the situation being discussed

  • What training, if any, the person has had in that area

If you need an expert and the person is not properly qualified, the person will not be permitted to testify or the court can ignore what he says. You can have your next-door neighbor who likes to tinker with car engines come in and challenge the testimony of a licensed mechanic, but the court will probably disregard his entire testimony.

On the other hand, if your neighbor worked for 40 years as the in-house mechanic for a national car-rental company and was exempt from licensing because of that fact, there’s a good chance you can make him an expert by asking the right questions about his training and experience.

Any expert must be able to establish what the standard is in your community for performing the particular service in question. If the expert doesn’t know the standard then he cannot testify.

In most states, professionals and artisans are held only to a community standard; that is, they can be evaluated only against the skill and expertise of persons performing that work in the local area.

A common example is that a local doctor in the middle of nowhere shouldn’t be judged by the same standards as a doctor at a major university medical center. The Internet, however, has started to erode this distinction, because it makes a vast variety of information available not only to everyone, thereby expanding the definition of the level of skill and knowledge expected of the professional or artisan.

If your opponent is calling in an expert to testify, the Internet also gives you the opportunity to bone up on the latest information on the issue the expert is going to testify about. This gives you the opportunity to ask the expert questions and attack his credibility by showing that maybe he’s not such an expert because he’s not aware of the latest information on the subject.