There are many online “experts” these days, whose only qualification is a keyboard and an Internet connection. But go to trial, into court and “Expert Witnesses” are serious assets who can be critical to winning or losing a case.

One of the most commonly misunderstood legal terms is that of “Expert Witness”.  Most non-lawyers – you know like normal people – think that the term refers to people who testify in court a lot. Not quite. The requirements to be an expert witness in a trial (there are requirements beyond a keyboard and a big mouth) are sometimes specific and can vary from state to state. In the Federal Courts (where copyright actions must be heard) the rules are pretty uniform throughout America.

Typically an expert witness is a doctor, engineer or scientist. In real life, in real courtrooms often they are specialists in all sorts of things such as elevators, construction, dog walkers, dry cleaners, telephone repairmen (or repair women), or just about any area of expertise you can name. Even photography. The attorney using the expert must establish to the court that the witness does indeed possess unique expertise in an area where the jury would need help. If the witness is qualified (in the opinion of the judge) the expert can testify and offer their opinions. Or sometimes a judge can disallow an expert based on lack of qualifications. So best to be careful selecting a qualified expert as they can be critical to winning or losing your case.

By far, and we mean by far, the very best example of qualifying an expert witness and demonstrating how expert testimony can decide a case, can be found thanks to two scenes in the the1992 film “My Cousin Vinny”. The character, Ms. Mona Lisa Vito played by Marisa Tomei (a role that won her the Oscar for Best Supporting Actress that year) demonstrates in one scene that she is qualified to give expert testimony, to the judge’s satisfaction (played by the late great Fred Gwynne in his last film). Later, in the movie’s climatic scene, she gives expert testimony effectively elicited by esteemed defense counsel, Joe Peci.

Law schools can’t explain it better than these two scenes. We can’t demonstrate it better than Ms. Vito does on her own in the following clips.

Link to scene 1: https://www.youtube.com/watch?v=3nGQLQF1b6I

Link to scene 2: https://www.youtube.com/watch?v=CFdJza0AbeA

But spoiler alert for scene 2, if you’ve never seen the movie, we highly recommend renting it and seeing it all. It’s a wonderful movie and scene 2, the climax, may give away too much.

How realistic is this courtroom depiction? In fact, it’s listed at #3 of the “25 Greatest Legal Movies” in The American Bar Association’s publication, the ABA Journal. But it’s #1 on our list.

From the IMDB website : “Director Jonathan Lynn actually has a law degree and insisted the film’s legal proceedings be realistic. In fact, many attorneys and law professors have praised the film for its accurate depiction of trial strategy and courtroom procedure, especially with regards to presenting expert witnesses at trial.”

Now some legalese:

Federal Rule 702: A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (Paraphrasing) the testimony/opinion is based on experience, reliable data, techniques, reliable tests, technical knowledge etc. which the expert has applied to the facts of the case.

Basically expert evidence or testimony most often amounts to the opinion of a witness not to the actual events in dispute but rather someone expressing his/her expertise in a matter not typically within a jury’s knowledge. Classically, it’s a doctor testifying about what and how medical or surgical procedures would be or should have been done in a given incident – or – it could be a technician from Canon testifying about the capabilities of a particular camera.

The expert’s testimony must be based experience or sufficient facts or data which are the product of reliable methods and principles, and if the expert reliably has applied the methods and principles to the facts of the case in trial.

There are various types of factual information that an expert witness may rely on to support an opinion. Included are facts perceived by the expert through her own experience, study or research, facts provided to her by others or facts learned of by the expert from other witnesses during the trial. The rule allows the expert to base his/her opinion on information that is reliable to practitioners in his/her field.

On occasion the expert can express an opinions about “ultimate facts”– those that determine which party wins.  For example if an expert effectively testifies that the metadata in the plaintiff’s image has been altered or eliminated by the defendant, that opinion can have the effect of winning or losing a particular copyright case.

So when either of us are called upon as an expert witness we may be testifying on topics such as: how photo licensing is priced, the common practices within the photo or modeling businesses, how a photo crew is assembled by a solo photographer, commonly used paperwork, the nature of the relationships by between and among reps, photographers, model agents, models, art buyers, clients etc.

Each side has the right to select at least one expert in most cases. In one case, Jack went up against two opposing experts. Some cases do in fact come down to “dueling experts”. The qualities of an effective expert witness will be addressed in another future article.