Expert testimony ≠ “certified” expert in Virginia

A misunderstanding that many clients have in litigation is whether they can testifying to an opinion on an area they have better-than-average knowledge in. The short answer is that, ordinarily, laymen do not have the right to testify on areas of science or other fields when it might affect the evidence at trial. Only those qualified as “experts” and deemed so by the court in a case are able to render an opinion.

However, the boundary between “expert” and “layman” is not always clear. This last month, the Supreme Court of Virginia reiterated what the difference between the two is. The Court published an order ( affirming the decision of the Court of Appeals of Virginia in Wakeman v. Commonwealth, 69 Va. App. 536 (2018), which had ruled that a nurse studying to be a forensic nurse examiner, and who had not yet taken the formal exam, could still testify as an expert.

According to Rule 2:702(a) of the Rules of the Supreme Court of Virginia, expert testimony is admissible in a civil case when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion.” In a criminal case, additionally, the court must find that “the subject matter is beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.”

Because the nurse had done all the legwork necessary that the court and jury would have benefited from, the trial court was correct to permit her to render an opinion.

At Winslow & McCurry, we have experience preparing cases where expert testimony will benefit clients, including fields like psychology, economics, medicine, and even law enforcement fields like corrections and prison operations. If you have a case that might require more than ordinary witnesses to explain to a court why it should rule in your favor, and you are in the Richmond, Hanover, Henrico, or Chesterfield area, call the attorneys at Winslow & McCurry for a consultation at 804-423-1382 and we can help!​