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Before the Trial

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Can I find out if the other side is calling witnesses? Will I have to tell who my witnesses will be?

As part of the discovery process, the parties can usually ask each other to identify any witnesses who saw incidents that occurred or who have other relevant information. The parties might also have to disclose if they plan to use any witnesses during the trial, both expert witnesses and non-expert witnesses who are often referred to as “lay witnesses” or “fact witnesses.” Depending on the type of court case, the parties might automatically have to exchange witness lists before trial. In other cases, you will have to request a witness list during discovery.

If you have to formally request a witness list, you would usually do this in writing as part of your discovery demands. In addition to requesting the names of the witnesses, you may be able to ask for a brief description of what they will testify to. Once you have the other side’s witness list, you can decide whether to ask for depositions from any of the witnesses. You can contact witnesses the other side identifies, and the other side is allowed to talk to your witnesses. However, you cannot threaten witnesses, intimidate them, or suggest answers. If you do plan to contact the other party’s witnesses, you should be careful about contacting the witnesses outside of an official setting because you could be accused of tampering with the witnesses.

What are expert witnesses?

An expert witness is someone with specialized skills, knowledge, or experience who testifies in court about what s/he believes has happened in a certain case based on those specialized skills, knowledge, or experience. Unlike any other witnesses who can only testify about what they have seen, felt, heard, smelled, touched, etc., expert witnesses can draw conclusions and give their opinions as part of their testimony.

Experts can be useful in cases that involve domestic violence. For example, a psychologist may be called as an expert witness to explain why an abused partner did not leave an abuser and otherwise acted in ways that might not make sense to a judge who doesn’t have any experience with domestic violence issues. Experts do not need to be academic in nature, you may be able to call a mechanic to explain what happens if sugar is put into a gas tank, or you could call a domestic violence professional to talk about the dynamics of domestic violence.

If a party is going to use an expert witness, s/he usually has to give to the other party the expert’s contact information and what subject the expert will be testifying about. This information is necessary so the opposing side can begin researching the expert with an eye towards trying to show that the person is not actually an expert and should not be allowed to reach any conclusions in the case. In some cases, both sides will use expert witnesses who may even reach different conclusions. It can be important to know how qualified each expert is so that an argument can be made as to which expert’s testimony should be believed (credited) by the judge or jury.

Why might I want to know if the other party plans to call experts?

You will want to know about expert witnesses that the other party plans on calling to testify so that you have time to prepare for how to handle them at trial. Once you know who the expert witnesses are that the other side is going to call, you can research into their background to see if the expert is actually experienced enough to qualify as an expert. If the proposed expert has only been in the field for a very short time, or has experience in some other area that does not necessarily match up with why s/he is called to testify, then you can challenge the witness being recognized by the court as an expert.

Once an expert witness is called to testify at a trial, the party who is offering the expert will ask him/her questions to establish his/her expertise. The judge has to approve the expert witness to qualify as an expert in a certain area and it may be possible for you to object if the expert lacks enough experience.

Even if the judge agrees to qualify the person as an expert witness, thereby allowing him/her to testify at trial, your research might lead you to other things in the expert witness’s background that you could use to discredit the testimony of the expert witness. Expert witnesses can be a very effective piece of a person’s case, and if the other side can call into question the expert’s opinions and cause the judge or the jury to doubt the expert, it could have a major impact at trial.