What is an Expert Witness?

Some of you have asked, “What is an expert witness?” since this is a service I offer.

According to the legal dictionary, an expert witness is, “a witness who has knowledge beyond that of the ordinary lay person enabling him/her to give testimony regarding an issue that requires expertise to understand.

“Experts are allowed to give ‘opinion testimony’ which a non-expert witness may be prohibited from testifying to. In court, the party offering the expert must lay a foundation for the expert’s testimony. Laying the foundation involves testifying about the expert’s credentials and experience which qualifies him/her as an expert. Sometimes the opposing party will stipulate (legal definition: agree to) the expert’s qualifications in the interests of time-saving.

“Experts are qualified according to a number of factors, including but not limited to: the number of years they have practiced in their respective field, work experience related to the case, published works, certifications, licensing, training, education, awards, and peer recognition. They may be called upon as consultants to a case and also used to give testimony at trial.

“Once listed as a witness for trial, the materials they rely upon in forming an opinion in the case are subject to discovery [legal definition: a period of time during which the sides in a legal case are allowed to request documents and other information from each other] by the opposing parties. Expert testimony is subject to attack on cross-examination in the form of questioning designed to bring out any limitations in the witness’s qualifications and experience, lack of witness’s confidence in his opinions, lack of the preparation done, or unreliability of the expert’s sources, tests, and methods, among other issues.”

Of the nearly twenty cases with which I’ve been involved, I have worked mostly with the plaintiff, though occasionally with the defendant.

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In each case, there was an alleged breach (breaking) of a contractual commitment. In some cases, it was a matter of non-payment of promised royalties or residuals. In others, it was non-disclosure of a change in plans for a movie’s release. In still others, I was called upon to give job definitions and responsibilities.

Interestingly, I’ve discovered that many “talent” (i.e., writers, actors, directors, producers, etc.) don’t read their contracts. Either they assume they’re fair and balanced, or they assume they won’t understand them anyway. This is a reason why I believe that a good qualified entertainment attorney can be your best friend.

The best contract, I believe, is one with which everyone can win. I call this my “tummy-ache” principle. In contracts, if you have a tummy ache and the other side doesn’t, you’ve been taken advantage of. If the other side has a tummy ache and you don’t, then you’ve taken advantage of the other side. If both sides have a tummy ache, then there’s been something uncommunicated. What you’re going for in a good negotiation is “neither side has a tummy ache.”

By my serving as an expert witness, I’m attempting to bring a bit more truth to the table.

The final question asked of me by the law firms who have hired me is: aren’t you afraid you’ll be blacklisted by the other side (most often, the major studios)?

My only answer is: no! And, indeed, I have no evidence that anyone resents my position. After all, I’m not testifying as to whether or not anyone broke an agreement or a law. Rather, I’m just describing standard practices in the industry.

This has been a rewarding experience in nearly all cases. Just last week, I received a letter from the lead attorney on a case involving the Musicians’ Union suing a company for non-payment of royalties. The Union won. Here’s

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an excerpt from the letter:

“The case was important to the Fund and the musicians it serves, and, I believe, very helpful to the entertainment industry

as a whole. Your work was invaluable. You brought scholarship to the Courtroom, combined with the experience of a life devoted to both education and the creative arts.”

I’m proud of this

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victory, and will enjoy continuing my service to my attorney clients.

Best,
Eric

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