Use of Experts in Litigation – Part 8

Keith B. DunnaganToday, we continue our look at the litigation process and examine the use of experts in litigation. In business and real estate, the use of experts is routine. Whether it is valuation experts related to a business dispute or a surveyor in a boundary line or easement dispute.

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Use of Experts in Litigation – Part 8

By: Robert J. Enos, Esq.

In our previous article on litigation we examined marshaling the evidence in preparation for trial. Today, in part 8 of the litigation series, we examine the use of experts in litigation. In business and real estate litigation expert witnesses are an essential part of the development and execution of many cases and are routinely involved in cases involving among others; non-disclosure, boundary disputes, easements, business valuation and fiduciary duties.

An expert witness is classified as an ‘expert’ because the individual possesses a specialized knowledge that pertains to the particular subject matter involved in the case. Expert witnesses may give testimony in the form of an opinion if the witness is qualified to testify as an expert, the expert witness’ testimony is related to a subject matter that is sufficiently beyond common experience, the expert’s opinion would assist the trier of fact, the expert witness’ testimony is based on matters perceived by or made known to the expert (either before or at the hearing), and the expert witness’ testimony is based on matters reasonably relied upon by experts in forming such opinions.

The admissibility of expert opinion is determined by the court as a matter of law, but the weight to be given expert opinion testimony is normally determined by the trier of fact. A judge or jury is not bound to accept an expert’s opinions and may reject them if, in their judgment, the expert’s reasoning is unsound. An expert witness may state on direct examination both the reasons for his or her opinion and the matters on which it is based. Expert witnesses are specifically permitted to state on direct examination that they have reviewed, considered, and relied on inadmissible evidence of a type upon which experts reasonably rely. When an expert has relied on privileged material to formulate an opinion, the court may exclude his or her testimony as necessary to enforce the privilege.
Where an expert witness testifies and the expert’s opinion is based in whole or in part upon the opinion or statement of another person, that other person may be called and examined as if under cross-examination concerning such opinion or statement.

An expert witness may be impeached by showing the falsity of any matter upon which the expert based his or her opinion (i.e., foundational facts). Sometimes this is done on cross-examination but, more frequently, contradiction is shown by calling other expert witnesses to testify to the nonexistence or error in the data upon which the expert relied. An expert witness may be cross-examined to the same extent as any other witness; e.g., bias, prior inconsistent statements, etc..

In addition, expert witnesses may be cross-examined on their qualifications, the subject matter of the expert testimony, the matters on which the expert opinion is based, and the reasons for the opinion. A “broader range of evidence” may be used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion. The following materials are sources that may be used to cross-examine an expert witness: the expert’s own deposition, depositions of key witnesses, textbooks, rules and regulations, documents utilized in relation to the litigation, discovery responses, and information provided by your own expert.

Bottom line, when it comes to the use of experts in litigation, the most important aspect is to recognize when your case requires one and making sure you retain the appropriate expert for your case.

The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.