The Pitfalls of Expert Witness Training and Certification Programs

When hiring an expert, attorneys, and litigants ideally want someone as qualified as possible. There are many factors to consider when evaluating potential experts and they should all possess the requisite education, training, skill, knowledge, and/or experience to be considered proficient in their respective fields. However, what constitutes “qualified” for one expert may be different from another. An expert’s credentials are largely dependent upon their specific practice area – formal academic training may not be as important as real-world experience in certain instances. Also, many experts require specific licenses to practice in their field, and likewise, should possess a valid and current license when acting as an expert – a doctor not licensed to practice medicine would not be a very persuasive medical expert at trial!

As experts have become more ubiquitous in the courtroom, so have different programs and training courses specifically geared toward professionals looking to parlay their skills and knowledge into the legal world. Expert certification or training programs typically offer an individual within a particular field the opportunity to complete a course that “trains” them to become an expert witness. At the conclusion of the training, the aspiring experts typically receive some sort of certificate of completion to signify that they are now credentialed as expert witnesses.

Of course, there is no such legal standard that requires anyone to complete “expert witness training” prior to testifying. Experts are deemed as such through their own professional accomplishments and education.

The most glaring downside of expert certification programs is that the law does not formally recognize these certifications. In other words, the completion of such a program, in and of itself, does not automatically render an individual “certified” to become an expert and does not guarantee the admissibility of the testimony. Therefore, if a potential expert has little educational background or experience in a practice area, it is not wise to rely solely on their “expert certifications.”

The institutions that bestow these certifications should also be scrutinized. Although there are many reputable organizations that offer such services, others may present a conflict of interest that could result in the disqualification of an expert’s testimony if it seems that the certifications are being given to less qualified individuals. Particularly when fees are involved, it may create the appearance that experts can “pay their way” into becoming certified. Likewise, an expert’s credibility is always an important issue to consider, which is why opposing counsel frequently engages in a line of questioning about the fees being paid to an expert. A paid certification program, particularly one from a lesser-known or credible organization, may give the appearance that the expert is a “hired gun” – and should not be trusted.

That being said, some certification programs are held by very reputable professional societies and are similar to continuing legal education courses for lawyers. For example, the Association of Certified Fraud Examiners is a nationally recognized organization that offers a rigorous training course on important issues in the field. Even for experienced experts, such courses may help keep them up-to-date and sharpen their skills.

Expert Certification Programs: The Verdict

Whether it is worth it to hire an expert who has completed a certification program is dependent upon the totality of the circumstances. The expert’s education, training, and work experience all may affect whether a certification program to specifically become an expert helps or hinders the testimony. But most importantly, the main question is whether the Court will view the certification favorably when conducting a Daubert analysis.

When deciding whether to admit expert testimony, a judge will consider the enumerated factors outlined in the seminal Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which is also codified in Rule 702 of the Federal Rules of Evidence.

The specific factors explicated by the Daubert Court are (1) whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied and the existence and maintenance of standards and controls; and (4) whether the technique or theory has been generally accepted in the scientific community. If a Court finds that an expert does not satisfy the Daubert criteria, then the testimony will be excluded.

Thus, it is important to evaluate the merits of any certification programs through the lens of Daubert. Generally, the more substantive a program is and the more it focuses on the science, theory, and testing behind the practice area, the better it will look on your expert’s résumé. And while a certification from a rigorous and prestigious training course can never hurt, attorneys should always consider the factors that the Court will use to judge their expert.