24 Rev. Litig. 559

Examination of Prior Expert Qualification and/or Disqualification – (Questionable Questions Under the Rules of Evidence)

Irving Prager and Kevin S. Marshall

Professors Marshall and Prager examine the practice of admitting into evidence an expert witness’s prior qualification or disqualification as an expert. They note that the practice is commonly accepted in trial courts, and it is rarely an issue on appeal. Nonetheless, the authors argue that appellate courts have implicitly been critical of the value and admissibility of such evidence, although it has been in dicta. Then, the authors argue that admitting prior expert qualification or disqualification violates the rules against hearsay and opinion evidence, has little probative value, and may unduly prejudice the jury. On this basis, they conclude that questions regarding prior expert qualification and disqualification should not be allowed, and experts should be judged by their knowledge, proficiency, and experience.


   I. Introduction    It is standard practice in the art of trial advocacy to inquire whether an expert has previously been qualified and/or excluded (disqualified) from testifying in a court of law. Such a practice is routine and common in most, if not all, jurisdictions and venues. It is overwhelmingly accepted by practitioners n1 and judges n2 alike. Law school clinical programs systematically instill this practice. n3 Professional and continuing legal education seminars remind the licensed professionals to adhere to it. n4 This foundational inquiry has become such a basic tenet of the art of trial advocacy that it is rarely met with objection. And yet, the information elicited from such inquiry provides little practical insight into the qualifications of the tendered expert. Moreover, the information elicited is incompatible with fundamental legal rules, i.e., the rules forbidding hearsay, opinion, unduly prejudicial evidence, and the rule barring support of one's witness. n5 Finally, and most importantly, such information may tip the scales of justice in a close case and, arguably, may result in reversible error.    Is this practice pursued out of habit originating from the practitioner's first trial advocacy course taken in law school? Is it pursued because most professional skills courses reiterate the utilization of this foundational inquiry? Is it pursued because judges simply allow it? Or more importantly, is this line of inquiry pursued because it is tactically designed to prejudicially influence the trier of fact's perception of the credibility and reliability of the opinion being proffered? Certainly, an affirmative answer to any or all of the above questions is insufficient to justify this continuing practice.    The apparent easy acceptance of the admissibility of judicial qualification (or failure to qualify) in other cases by practitioners and trial courts is surprising when one considers the potential legal issues raised by this evidence. It is also surprising that little appellate discussion of these issues can be found. Moreover, a review of the forensic literature dealing with expert qualification favorably supports the practice of inquiring as to an expert witness's prior qualification. n6 It also fails to recognize the operative legal issues relating to it.    This article explores, analyzes, and summarizes the evidentiary considerations with respect to the specific inquiry regarding whether a testifying expert has ever been previously qualified and/or excluded (disqualified) as an expert by a court. Ultimately, we conclude that, generally, n7 such an inquiry is improper and should be prohibited as a matter of law.        II. The Courtroom Inquiry A witness may offer an expert opinion in court only if he or she is shown to be "qualified as an expert by knowledge, skill, experience, training or education." n8 The trial judge has the duty to decide, by a preponderance of evidence, whether or not the witness is appropriately qualified. n9 When introducing an expert to the judge and jury, counsel will likely offer evidence of the witness 's success in qualifying in other cases. If the witness has never been previously qualified, the opponent, predictably, will raise this ostensible weakness when attacking the witness's qualifications. n10 Once the witness has been deemed qualified and has rendered an opinion, the fact that he or she may not have testified as an expert in a previous case or, worse yet, failed to qualify when proffered as an expert previously, will be fertile ground for attacking the expert's credibility.    In his textbook, Trial Techniques, Professor Mauet n11 provides the following instructional example:    Example:    Q. Dr. Adams, have you been accepted as an expert in orthopedic surgery by the courts of this country?    A. Yes.    Q.How many times?    A.I believe it's been 14 times. n12    Judge Goldstein instructs the practitioner to pursue the following line of inquiry:    Accepted as experts by courts.    Q. Have you had the occasion to testify in court concerning disputed and questioned documents?    A. Yes, I have.    Q. In what courts of record have you testified?    A. In all courts.    Q. Will you specify some of them, please?    A. In municipal courts, county courts, probate courts, circuit and superior courts, and United States courts. n13 Similarly, in his treatise The Art of Advocacy Direct Examination, Baldwin provides the following instructive illustration:     35.06 Witness Has Prior Courtroom Experience    Q. Have you ever qualified as an expert witness in this court to testify about the wealth or value of public corporations?    A. Yes, I have, sir.    Q. And about how many times?    A. Well, without the word public on there, I would say at least twice here and other times involving rather closed corporations.    Q. How many times for closed corporations?    A. Probably four or five here in this jurisdiction and many more times in Florida.    . . .    [Examining Attorney]: We tender Professor Williams as an economist with the ability to testify as to the value worth of a public corporation. n14     The purpose of this line of questioning is to bolster the qualifications and credibility of the testifying expert. n15 Without knowing the details, facts, and circumstances of each courtroom appearance, it would be anticipated that the jury would infer that the expert's previous courtroom experience strongly indicates that he is qualified to render an opinion in the present case.    On the other side of the adversarial aisle, one can expect opposing counsel to share with the jury that a testifying expert has been previously excluded from offering expert opinions in a court. n16 For example, the following line of cross examination was directed to a witness retained to render an economic opinion in a wrongful death case:    Q: When did you start working as a consultant expert in litigation matters?     A: The very first case I had, the best that I can remember, was in the fall of 1974.    Q: So it would be 30 years. You mentioned Daubert, and I know you have actually written about Daubert on at least one paper that I have read. Have you ever, under Daubert or any other case that you are aware of, had your case limited or excluded by a judge? n17 Assuming the anticipated response affirms prior judicial exclusion, the intent of this line of cross examination is to attack the qualifications of the expert and impress upon the jury the inference that the expert is not presently qualified to give expert economic opinion testimony. Few would disagree that "the credibility of any expert would be seriously, perhaps irreparably undermined, were it ever necessary to answer in the affirmative to the question: "Have you ever failed to qualify as an expert?'" n18 This would occur even though the expert may have been well qualified with respect to education, experience, skill, or specialized knowledge.    An effective examination of an expert is designed not only to elicit substantive evidence, but also to create a general impression about the expert in the minds of the jurors. Such an impression frequently controls whether the expert's opinion will be embraced by the jury. n19 The number of times an expert has been previously qualified and/or disqualified in other judicial matters may be quite persuasive. The question before us is whether such a persuasive impression is grounded on a sound legal foundation.        III. The Questionable Authoritative Support For The Admissibility Of Prior Expert Qualification    A. Federal Rules of Evidence The Federal Rules of Evidence are devoid of any reference to the admissibility of evidence of prior expert qualification. Rule 702 lists five factors pertinent to expert qualifications: knowledge, skill, experience, training, and education. n20 The only word in this list that might be argued to implicitly refer to prior episodes wherein a witness was deemed qualified is "experience." There is nothing in the statute or committee comments, however, supporting an argument that prior qualification constitutes "experience." n21 It seems clear that "experience" in the context of Rule 702 refers to time spent enhancing one's knowledge and proficiency in a specialized field of expertise; i.e., practicing and enhancing one's craft rather than hearing a judge comment on it.    B. Appellate Authority A reading of the case law regarding expert qualification demonstrates that the practice of inquiring into whether a witness has ever been previously qualified or disqualified is routinely accepted by trial and appellate courts alike. n22 Given that such a practice is consistently accepted by both practitioners and judges, it is of little surprise that we have failed to find any court that has definitively ruled that such a practice is improper. The very fact that the practice of inquiring about prior qualification has become commonplace may itself be a self fulfilling prophecy of legal propriety; attorneys expecting appellate affirmation may refrain from raising legal issues which exist regarding this subject.    Even if an attorney were to object at trial and raise legal issues regarding this subject on appeal, it is not unlikely that an appellate court would fail to find reversible error. The subject of expert qualifications, appellate courts are fond of saying, "rests in the sound discretion of the trial court." n23 Even if abuse of discretion is found, it is far from certain that judges adequately appreciate the impact that this subject may have on a jury. n24 Hence, an appellate court may decide that the error was "harmless." n25 However, as we contend in this article, the use of prior qualification or disqualification evidence may, in certain cases, rise to the level of reversible error.    Unquestioning acceptance of prior qualification evidence by appellate courts is not uncommon. n26 As stated by one appellate court, "prior qualification is a factor used by courts in determining whether someone should be qualified as an expert witness." n27 Not only is prior successful qualification regarded favorably, but, according to some courts, it is also a positive factor that the witness "has never been refused qualification as an expert." n28 Since the fact of successful qualification is regarded as a factor of importance, the more often the witness has been successful at qualifying, the more impressed some courts seem to be. n29 It follows that a court favorably impressed with the fact that a witness previously qualified as an expert (and how often the witness qualified as such) would look askance at the fact that a witness has never previously appeared in court at as an expert. As one court stated, "when a proposed expert had not been qualified before, the court should take a closer look at his qualifications." n30    However, favorable comments on the practice of admitting prior qualification evidence are not the same as holdings that this practice is legally defensible. It must be kept in mind that in none of the cases cited in this article was the admissibility of this evidence objected to or made an issue on appeal. In other words, although many courts mention this evidence as having some bearing on the qualification question, these comments are mere dicta.    In contrast to the favorable dicta found in many cases is the critical response of appellate courts that implicitly question the value, if not the admissibility, of prior qualification evidence. n31 For example, in Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., n32 the appellant argued, inter alia, that, because a tendered witness's qualifications as a cause and origin fire expert had been rejected by two previous trial judges, the witness should have been precluded from testifying as a cause and origin fire expert in the instant case. The appellate court dismissed this argument, stating that "the views of prior judges about [the tendered witness] would be largely irrelevant here." n33 In Elcock v. Kmart Corporation, n34 a proffered witness qualified as an expert in similar matters. Nevertheless, the court noted that the "mere fact that [the proffered witness] was previously admitted as an expert witness qualified to give testimony on vocational rehabilitation is irrelevant to the determination whether he is qualified to give such testimony in this case." n35    In Kline v. Lorillard, n36 the United States Court of Appeals for the Fourth Circuit ruled that the trial court abused its discretion when it qualified the plaintiff's proffered witness as an expert on Robinson Patman matters. n37 While the witness had qualified previously, the court held that the witness's knowledge, education, training, and skill failed to satisfy even the minimal requirements of Federal Rule 702. n38 In so holding, the court noted that "it would be absurd to conclude that one can become an expert simply by accumulating experience in testifying." n39 Kline suggests the fact that a witness has previously qualified is of little import to the determination as to whether the witness is qualified in any other matter.    Unfortunately, what is missing from the appellate cases discussing prior expert qualification or disqualification is any substantial discussion of the legal basis for admissibility of this evidence. Dicta, favorable or unfavorable, frequent or infrequent, cannot be an adequate substitute for a resolution of the applicable legal issues that may be raised. A review of the fundamental rules of evidence, however, suggests that prior qualification or disqualification is simply inadmissible as a matter of law. n40    IV. The Incompatibility of Prior Qualification Evidence With Fundamental Legal Rules    A. The Hearsay Problem Any statement made at any time or place prior to the present trial and now offered as true is, of course, hearsay. n41 Consequently, it should be indisputable that a judge's assertion that a witness has been shown to be an expert is a hearsay statement if this assertion is explicitly or implicitly presented in a subsequent trial as evidence of the witness's expertise. n42    The primary reason for excluding hearsay is that a person whose assertion is offered as accurate should testify in person before the jury so that the jury can assess the meaning and accuracy of the statement. The need for in person testimony rather than a second hand rendition is particularly acute when the statement is an opinion and the jury is not privy to the basis for the opinion. n43     The hearsay rule (i.e., the rule that hearsay is inadmissible) has numerous exceptions, modernly specified in statutes, n44 but none appear to cover a witness's reference to a prior judicial assessment of expertise in another case.    A prior judge's assertion that a witness was qualified to proffer an opinion in another case exemplifies the fundamental reasoning underlying the hearsay rule. From such an assertion, one can draw little knowledge regarding the witness's present qualifications. Without knowing the context in which the assertion was made; the underlying facts of the case; the data considered by the witness; the subject matter at which the opinion was directed; the relationship between the witness's training, education, skills, and special knowledge and the subject matter; it is illogical to infer from such an assertion that the witness is somehow qualified (or not qualified) to render an opinion in the present case. Moreover, the prior qualification may have been met with little resistance, or even attained by stipulation. Without the opportunity to examine the out of court declarant as to the underlying reasons for such an assertion regarding the witness's qualification, the party against whom the opinion is being offered is procedurally disadvantaged.    B. The Opinion Problem Admitting testimony about a judge's conclusion in a previous case not only runs afoul of the hearsay rule, but also is, at best, highly problematic because it constitutes opinion evidence. The opinion rule forbids testimony in the form of an opinion. n45 Generally, witnesses are restricted to testifying about facts which they have observed, leaving it to the jury to decide which inferences or conclusions should be drawn from these facts. Thus, the law generally makes testimony inadmissible when it consists of inferences, conclusions, or beliefs; i.e., opinions. n46 This rule has exceptions, notably, when a jury cannot effectively evaluate technical facts beyond their ken, an expert is allowed to testify and explain his or her expert evaluation of the facts in order to assist the jury in reaching its own conclusions. n47    Although one might conceivably craft an argument that a judge's conclusion regarding the qualifications of a witness constitutes "expert opinion" evidence, it is nonetheless a stretch to describe a judge as an expert on the subject of who is an expert in a given field. Moreover, even if we were to assume expertise, it should be noted that no witness may present legal conclusions as testimony. n48 When a judge states that a witness has or has not qualified as an expert, the judge's statement essentially contains legal conclusions; i.e., that the preponderance of evidence standard has or has not been met regarding the statutory requirements for a finding of expertise. Clearly, there are cogent reasons to exclude this second hand presentation of opinion evidence.    V. The Prejudice Problem    A. Probative Value "Relevance" is a standard requirement for admissibility. n49 The relevance requirement is not particularly demanding. The Federal Rules of Evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence." n50    It is doubtful that the mere fact that a judge (or anyone else with some knowledge of the subject) declares a person to be an expert in a specific case tends to make the existence of expertise more probable than it would be without this statement. Without more, such a fact is of little consequence to the determination of expertise in a pending action. What may be of consequence is the context in which the prior declaration regarding the witness's expertise was made, i.e., what were the underlying facts, the nature of the claim, the specialized knowledge that was applied, the relationship of the specialized analysis to the facts upon which the opinion emanated, etc. However, even if one were to accept the premise that such a declaration might have a tendency to make the existence of expertise more probable, and allowing the assumption, that a judge's declaration to this effect is relevant, the analysis does not end here. To be admissible, evidence must pass muster under other rules (such as hearsay and opinion rules, discussed supra). One of these rules a very fundamental one prohibits the admissibility of evidence where the probative value of the evidence is substantially outweighed by the risk of undue prejudice. n51    If the evidence is relevant but not particularly determinative of a "fact of consequence to the determination of the action," (the Federal Rules standard) the evidence does not have much "probative value." That a judge in a prior case stated that a witness was or was not qualified to render an expert opinion in that case simply is not very probative of the witness's qualifications to testify as an expert in a different case. The subject matter of the expert's previous opinion is unlikely to have been precisely the same as the subject matter in a subsequent case, diminishing (if not making entirely irrelevant) any probative value of the fact that the expert qualified previously. An expert, after all, is "to be qualified upon an opinion by opinion basis." n52 Qualification is not "in the abstract," n53 but in regard to facts specific to each individual case.    Moreover, it might also occur that a witness may have been an expert at one time, but has subsequently lost qualifications. n54 For instance, in Rosado v. Deters, n55 the United States Court of Appeals for the Fifth Circuit affirmed the district court's exclusion of an accident re construction expert who had been previously qualified as such an expert in years past, but who since that time had failed to take any refresher courses in the subject area. n56 And, in Richmond Steel, Inc. v. Puerto Rican American Insurance, n57 the United States Court of Appeals for the First Circuit affirmed the district court's exclusion of a certified public accountant as an expert, noting that it had been ten years since the accountant last dealt with a construction enterprise of comparable size to the party before the court. n58    The mere fact that a witness has previously qualified as an expert is unlikely to have much reliable evidentiary value in a subsequent case. In fact, it has been said that qualification in a prior case is "largely irrelevant" n59 to the determination in a subsequent case. A witness is qualified as an expert primarily by facts demonstrating the expert's "knowledge, skill, experience, training . . . or education," n60 not by the conclusion of an unnamed judge in an unrelated case who does not, of course, appear as a witness in the present case to explain his or her conclusion. Whatever probative value is derived from this conclusion, it is not very substantial.    B. The Danger of Undue Prejudice Unlike the weak probative value of a judge's conclusion in a prior case, the danger of undue prejudice inherent in this evidence may be quite significant, particularly in a jury trial. n61 Although attorneys might be aware that the term "expert" may encompass even modest circumstances, jurors are likely to have a much more exalted view of this designation. Jurors are likely to regard the "expert" designation as an indication of infallibility. Accordingly, it may be difficult for jurors to avoid deferring to an expert rather than exercising the independent judgment that the law requires of them. Moreover, as all trial attorneys and judges are aware, a judicial assertion carries much more weight with the jury than lay testimony, and more weight than it deserves in the expert qualification situation. n62 As one court observed:    A witness who has been admitted by the trial court as an expert often appears inherently more credible to the jury than does a lay witness. Consequently, a jury more readily accepts the opinion of an expert witness as true simply because of his or her designation as an expert. n63     Even the labeling of a witness as an "expert" may have an unduly prejudicial effect on the jury. Charles R. Richey, United States Judge for the District of Columbia, observed that "to a jury an expert is just an unbridled authority figure, and as such he or she [is] more believable." n64 The judge further noted that "stating that someone is an expert not only speaks to his or her credentials, but also vouches for his or her credibility." n65 Given the prejudicial effect of such a label, Judge Richey went so far as to propose that the Advisory Committee on the Federal Rules of Evidence delete any reference to the term "expert witness" in the 700 series of the rules. n66 Judge Richey practices what he preaches, as demonstrated by his strict prohibition against the use of the term "expert" in his court:    The practice of labeling a person an "expert" must be forbidden. As a result of barring the use of the word "expert" in my courtroom, I ensure that no untoward affiliations unfold between the opinion witnesses and the jury. Moreover, a judicial acknowledgment of the status of an "expert" as a witness, is fundamentally unfair and prejudicial . . . . n67     If the mere judicial act of certifying a witness to be qualified to testify as an expert can generate a prejudicial aura of credibility and reliability, then surely the admission of evidence establishing that a witness has been previously certified, designated, or qualified to testify as an expert in other matters before other courts must have an equal or greater prejudicial danger.     In a pilot study of the use of expert witnesses in civil cases in Dallas, Texas, questionnaires were forwarded to the jurors, judges, lawyers, and experts involved in approximately forty civil trials which took place during a three month period. In each of the forty cases, expert testimony was presented. Sixty five percent of the jurors surveyed stated that the testimony of expert witnesses was crucial to the outcome of the case. n68 Moreover, the presiding judges were asked to rank the importance of certain factors when considering whether to qualify a witness as an expert. Seventy percent of the judges surveyed deemed the fact that a witness had previously been qualified in another matter as an unimportant factor. n69 This study provides empirical support regarding both the influence (and therefore potential prejudicial danger) of expert witness testimony, as well as the underlying premise of this article that previous judicial qualification should not be a factor in determining present qualification of a proffered expert.    One might consider the close case in which the weight of the evidence is equally balanced in favor of both the plaintiff and the defendant. Within this equally balanced evidentiary context, both the plaintiff and the defendant offer equally qualified experts, each with opinions in opposition to the other. In such a case, the outcome of the case is critically dependent on the trier of fact's acceptance of one or the other expert opinions. In juxtaposition, however, are the evidentiary facts that plaintiff's expert had been previously qualified in 145 other trials and defendant's expert had been previously disqualified (or excluded) in one other trial. The juxtaposing batting averages or scorecards of each expert with respect to being previously qualified or disqualified should be of relatively minor probative importance. And yet, in such a close case, such evidence may ultimately prove to be the determining factor which sways a jury to find for one party or the other.    VI. Support and Impeachment Absent an attack on a witness's credibility, the law generally forbids the proponent of the witness to attempt to bolster his or her credibility. n70 The fact that a witness may have said or done something previously which would reflect favorably on his or her believability is, as a general rule, inadmissible if offered to show that the witness is more likely to be credible. Asking a witness if he or she was previously deemed to be an expert, when introduced to show present expertise (and, implicitly that the witness opinion is more likely to be valid), is at variance with the rule forbidding support.    Of course, the credibility of the expert is often attacked, but none of the legally proper grounds of impeachment is likely to involve the question of prior qualification or disqualification. n71 Thus, rebuttal of impeachment by the witness's proponent may not properly bring up this subject.    VII. The Danger of Reversible Error It might be said that the prior qualification inquiry is innocuous in that it will not lead to reversible error. However, an expert's "score card" may shift the weight of the evidence in favor of one party or the other and may lead to the introduction of evidence sufficiently detrimental to a party such that it constitutes reversible error. Reiterating the close case in which the weight of the evidence is equally balanced in favor of both the plaintiff and the defendant with equally qualified experts with contrasting and controverting opinions, it would seem reasonable to conclude that the admission of such "scores" could easily constitute harmful error.    It merits noting that the right to call witnesses in both civil and criminal trials is a fundamental right within our constitutional framework secured by both the Compulsory Process Clause of the Sixth Amendment n72 and the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. n73 Few rights are more fundamental than the right of a litigant to present witnesses on his or her own behalf. n74 Should it occur that an expert is disqualified, in part, because of a failure to qualify previously, the proponent of this witness may be deprived of his fundamental right to present critical evidence. n75    VIII. Conclusion Courts and practitioners should recognize that the practice of eliciting testimony regarding previous instances of qualification or disqualification is contrary to fundamental legal rules. It is perplexing that this practice has long been accepted by practitioners, judges, and academicians alike.    A prior witness's knowledge, proficiency, and experience should be assessed when considering whether he or she is qualified to testify as an expert. Evidence that judges in other cases deemed the witness to be an expert, however, is inadmissible hearsay and opinion evidence. The presentation of this evidence is simply an effort to support the witness in a way that is often unduly prejudicial.    Despite the apparent perception that the foundational inquiry pertaining to a witness's prior qualification or disqualification is innocuous, it may detrimentally impact the outcome of a close case, particularly in a jury trial. An expert's "score card," in a case in which the evidence is equally balanced in favor of both the plaintiff and the defendant, could conceivably shift the weight of the evidence in favor of one party. In such a case, the admission of such "scores" could easily constitute harmful, and therefore reversible, error.    Many jurors likely enter the courtroom believing that "expert" designation is an exalted status, one which merits overwhelming deference. When the judge (who also is accorded great deference) announces that a witness is an "expert" (after the proponent of this witness has emphasized that the witness has been declared an "expert" time and again), jurors (or even judges) cannot be faulted for accepting such a witness's opinions as virtually sacrosanct. In should not be surprising, under these circumstances, that a juror or a judge may abdicate his or her responsibility to exercise independent judgment.    Accordingly, the questionable questions regarding an expert's prior qualification and/or disqualification simply should be forbidden.
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