Qualifying your expert witness

April 2008
By Hon. John A. Wittmayer, Multnomah County Circuit Court

"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." OEC 702, ORS 40.410. (Emphasis added.)

Whether a witness is qualified as an expert is a preliminary question of fact for the trial judge to decide under OEC 104(1). ("Preliminary questions concerning the qualification of a person to be a witness ... shall be determined by the court...") But how often is this really in controversy? Rarely. Most of the time, there is no question about the expert witness' qualifications.

In my view, much time is wasted in trial by what seems to be rote preliminary questions from counsel to the expert to establish the expert's qualification, e.g. "Doctor, tell the jury your profession," and "tell the jury about your education," etc. Years ago I learned from Judge Owen Panner that you can establish the witness's expertise much quicker and in a more organized fashion.

Judge Panner taught me that the lawyer calling the witness can, after the witness is sworn and before asking any questions, simply recite to the jury in an organized and concise manner the witness's qualification, following which the lawyer can ask the witness if that is correct. For instance, it might go as follows: "Doctor Jones is a medical doctor specializing in orthopedics. She got her bachelor's degree in pre-med at PSU in 1973 and graduated from medical school at OHSU in 1977. She completed an orthopedic residency at OHSU in 1982 and since then has been in the private practice of orthopedics in Portland. She is Board Certified in orthopedics, and is a member of (list whatever she belongs to)." You can then ask the doctor "Is that correct, doctor?" The witness can confirm you got it right, and can add or correct anything necessary.

Granted, this is a classic leading question. But the trial judge has broad discretion about whether to allow leading questions. OEC 611(3), ORS 40.370. "Courts are likely to allow leading questions when the testimony relates only to undisputed preliminary or background matters..." Kirkpatrick, Oregon Evidence, Fifth Edition, at p. 538. In my view, and as pointed out to me by Judge Panner, the uncontroversial qualifications of most expert witnesses are such "undisputed preliminary or background matters..."

I suggest that if you agree this is a useful approach to qualifying your expert witness, you alert your trial judge and adverse counsel in advance to avoid any unnecessary objections.