Forensic, General & Medical
Expert Witnesses

Excluding an Expert Witness


It is possible to increase the success of a trial for criminal cases or with civil claims by excluding a witness that has little relevance or who uses unreliable testing methods. By excluding the witness’ testimony, the opposing legal team is able to remove any connection of that specific professional from the case and increase strategy implementation.

The Importance of Exclusion

The opposing legal team may require the necessary challenge or motion to exclude the testimony of an expert witness based on a lack of relevance to the subject matter of the case or when the professional is unable to use testing methods that are reliable. In certain cases, the other lawyer will issue a motion or challenge to exclude the expert witness based on testimony or a report that is confusing. The opinions based on fact may remain confusing until the professional clears up confusing details by explaining them based on evidence and other facts and connected data.

Admissibility of Expert Testimony

If the expert is able to remain a part of the case, his or her testimony is admissible. However, when the opposing legal counsel is successful, this testimony is inadmissible. The exclusion will apply to all information the professional would explain and detail to the court. This may even include tips and data about the evidence or how to avoid additional problems in the future. This requires the expert to use various strategies to remain a designated expert witness and pass the motion or objection to testimony from the other lawyer. This is often possible through increased preparedness.

Why Exclude the Expert’s Testimony?

Many lawyers will seek to exclude the expert’s testimony when it appears that the facts and data that the professional bases his or her opinions on are skewed. This may occur if the testing methods are not reliable. Any results from tests with an error rate that fluctuates or is greater than five percent may not remain consistent. Basing opinions with the evidence or series of events on such results may provide testimony that is not truly connected to facts and the subject matter of the case. Then, it is up to the lawyer to exclude this testimony from the case and expose the matter to the court.

Other instances of exclusion of testimony generally fall into the persistent confusion category. If the testimony is still confusing or does not clarify confusing matters, the legal team may need to attempt to exclude the testimony. It is the expert’s job to remove these unclear issues so that the courtroom has a better understanding of the evidence, tests, results or incident. For criminal trials, these concerns are more significant such as white-collar crimes that only an expert witness truly comprehends. Clearing up confusing details with additional facts is critical.

Pursuing the Exclusion

For the opposing lawyer to exclude the testimony of an expert witness, he or she must prove that the professional is not providing the court with the necessary information. Whether this occurs with continued confusion or unreliable testing methods, the legal team must prove to the judge that the expert is not what the case needs. This may lead to a full disqualification depending on the circumstance. With certain motions or objections, the legal counsel may convince the judge why exclusion is necessary. It is possible to use a Daubert challenge to exclude the professional from participating in the courtroom proceedings.

Advancements into the case details and giving the courtroom a better understanding of the methods and details of the incident or criminal charges are important for the expert. When the professional is not performing his or her job, it is possible to exclude him or her. Refuting examples, proving conclusions or facts are wrong and countering the narrative the expert explains are often how the legal team may exclude testimony or the witness from the case entirely.

The Expert Witness Progressing through an Exclusion

If the legal team is able to provide sufficient information to exclude the expert witness, the opposing lawyer may remove him or her from the case. However, the professional is given the ability to defend against motions, challenges or objections. With enough facts, data and details, he or she may convince the judge to remain to the case or for testimony’s inclusion in the courtroom. It is important to refute the objections and propose a solution to the Daubert challenge with careful consideration, and then the exclusion is no longer valid in the courtroom.


Provided by HG.org

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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