Premises Liability and Negligent Security Expert Witness: What you need to know as an expert witness

Navigating the complexities of expert witness testimony for premises liability and/or negligent security cases requires more than just an understanding of the security aspects of the case. Expert witnesses must be well-versed in a variety of legal principles and procedural requirements to ensure their testimony is both credible and admissible.

This guide explores the key considerations for expert witnesses, including the Frye standard, Federal Rules of Evidence 702, qualifications, relevance and reliability, expert reports, depositions, disclosure obligations, ethical standards, local court rules, and relevant case law. By mastering these elements, expert witnesses can enhance their effectiveness in court and contribute valuable insights to the judicial process.

By being aware of these considerations, an expert witness can effectively prepare and deliver credible, admissible testimony in court:

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Daubert Standard

The Daubert standard, established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., provides a framework for determining the admissibility of expert testimony. Under this standard, the court assesses whether the expert’s testimony is based on scientifically valid reasoning and methodology. The factors considered include whether the theory or technique has been tested, subjected to peer review and publication, known or potential error rates, the existence and maintenance of standards controlling the technique’s operation, and general acceptance within the relevant scientific community. This ensures that expert testimony is not only relevant but also reliable. Learn more about the Daubert standard.

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Frye Standard

In some jurisdictions, the Frye standard is used instead of Daubert. Originating from Frye v. United States, this standard requires that the expert’s methods be generally accepted by the relevant scientific community. Unlike the Daubert standard, which involves a multi-factor analysis, the Frye standard focuses solely on the consensus within the scientific community. This means that if the scientific principles underlying the expert’s testimony are not generally accepted, the testimony will not be admitted, regardless of its potential relevance or reliability. Learn more about the Frye standard.

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Federal Rules of Evidence (FRE) 702

Federal Rule of Evidence 702 governs the admissibility of expert testimony in federal courts. According to FRE 702, an expert witness must possess the necessary knowledge, skill, experience, training, or education to testify. The testimony must be based on sufficient facts or data, be the product of reliable principles and methods, and the expert must have applied these principles and methods reliably to the facts of the case. This rule ensures that expert testimony is both relevant and reliable, helping the trier of fact understand the evidence or determine a fact in issue. Learn more about FRE 702.

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Qualifications

An expert witness must demonstrate appropriate qualifications, including education, experience, training, and expertise in the relevant field. Courts scrutinize the expert’s credentials to ensure they possess the necessary background to offer an informed opinion. This can involve a detailed examination of the expert’s professional history, publications, and any prior instances of providing expert testimony. Proper qualifications help establish the credibility and authority of the expert’s testimony. Learn more about expert qualifications.

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Relevance and Reliability

The testimony provided by an expert must be both relevant to the case and based on reliable principles and methods. Relevance ensures that the testimony directly pertains to issues in the case, while reliability ensures that the testimony is based on sound scientific or technical reasoning. This often involves consideration of peer-reviewed publications, error rates, and the general acceptance of the methodology within the scientific community. Courts carefully evaluate these aspects to ensure that the testimony will assist the trier of fact in understanding the evidence or determining a fact at issue. Learn more about relevance and reliability.

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Expert Report

In many cases, experts are required to prepare a detailed report outlining their opinions, methodologies, and the basis for their conclusions. This report is subject to scrutiny by the opposing counsel and must comply with specific procedural requirements. The report should clearly articulate the expert’s findings and the reasoning behind them, providing a transparent basis for their testimony. This document becomes a critical piece of evidence, and any shortcomings can be exploited during cross-examination. Learn more about expert reports.

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Deposition and Cross-Examination

Expert witnesses must be prepared for depositions and cross-examinations, where their methodologies, qualifications, and conclusions will be challenged. During depositions, the opposing counsel will seek to uncover any weaknesses or inconsistencies in the expert’s testimony. Cross-examinations in court can be even more rigorous, requiring the expert to defend their opinions and methodologies under pressure. Effective preparation and a thorough understanding of the case are essential for withstanding these challenges. Learn more about depositions and cross-examinations.

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Disclosure Obligations

Experts must be aware of the disclosure obligations under both the Federal Rules of Civil Procedure and local rules, ensuring all relevant materials and methodologies are disclosed to the opposing party. Failure to disclose required information can result in the exclusion of the expert’s testimony or other sanctions. Full compliance with these obligations promotes transparency and fairness in the legal process, allowing the opposing party to adequately prepare for cross-examination and rebuttal. Learn more about disclosure obligations.

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Ethical Standards

Maintaining high ethical standards is crucial for expert witnesses, including impartiality, honesty, and avoiding conflicts of interest. Experts should provide objective opinions based on their expertise, rather than advocating for one side. Ethical lapses can damage the credibility of the expert and undermine their testimony. Adhering to professional and ethical guidelines ensures that the expert’s contributions are respected and valued in the judicial process. Learn more about ethical standards for expert witnesses.

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Local Court Rules

Different jurisdictions may have specific rules and requirements for expert testimony. It is important for experts to be familiar with these local rules, which can vary significantly from one jurisdiction to another. Understanding local court procedures and expectations ensures that the expert’s testimony complies with all relevant guidelines and increases the likelihood of its admissibility. Learn more about local court rules.

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Case Law

Understanding relevant case law that may impact the admissibility of expert testimony is important. Previous rulings can provide guidance on how courts may view certain methodologies and qualifications. Staying informed about pertinent case law helps experts anticipate challenges and adapt their approach to meet judicial expectations, thereby enhancing the effectiveness and admissibility of their testimony. Learn more about case law related to expert testimony.

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Joseph M. LaSorsa, CPP® is currently a senior partner managing and conducting: Protective Operations Training Courses, Executive Protection & Bodyguard Services, Risk Management Consultations & Seminars, Security Expert Witness Testimony, Workplace Violence Prevention Seminars & Intervention Services, Security Consultations & Seminars, Private Investigations and Technical Surveillance Counter-Measures with LaSorsa & Associates – an International Protection, Investigations & Consulting Firm.