Massachusetts Jury Instruction - 5.2 Expert Witnesses When Expert Witness Fees Represent A Significant Portion Of The Witness' Income
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FAQ
While the amended FRE 702 does not require a court to ?nitpick an expert's opinion to reach a perfect expression? of what might be supportable testimony, it ?does not permit the expert to make claims that are unsupported by the expert's basis and methodology.?
Each party selects their own expert witness, and those experts are usually paid a fee for their consultation and their testimony. Experts may be located in a variety of ways, including prior lawsuits, and online resources such as the JurisPro Expert Witness Directory.
R. Evid. 703, which permits opinions based on inadmissible evidence of a type reasonably relied upon by experts in the relevant field, Massachusetts law requires the facts or data underlying an opinion to be independently admissible, even if not actually admitted.
702, reflects Massachusetts common law. The proponent of expert testimony must establish the foundational requirements for admissibility, and the judge, as the "gatekeeper" of the evidence, must make a threshold determination that those requirements have been met before the testimony goes to the jury.
Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast, the ?reasonable reliance? requirement of Rule 703 is a relatively narrow inquiry.
Unless the court orders otherwise, an expert may state an opinion ? and give the reasons for it ? without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
The median hourly fee for testifying in court for all experts responding is $500/hour. 66% of experts responding require retaining counsel to sign a retention agreement. 57% of experts responding raised their rates in the last five years.
