By Matt Harrington, BCBA · Behaviorist Book Club · Research-backed answers for behavior analysts
While the specific formulation is part of the course content, expert witness frameworks commonly emphasize competence (possessing the specialized knowledge required for the case), credibility (being believable and trustworthy to the trier of fact), clarity (communicating complex concepts in understandable terms), and character (maintaining ethical integrity throughout the engagement). These qualities determine whether an expert witness will be effective in helping the court understand the behavioral issues in a case.
Cases involving allegations of inadequate behavioral treatment or standards of care, client injury during behavioral services, educational due process hearings about the appropriateness of behavioral services in school settings, custody disputes where behavioral services are relevant, personal injury cases where behavioral functioning is at issue, professional licensing board complaints, insurance disputes about the medical necessity of behavioral services, and occasionally criminal proceedings involving behavioral assessment or sentencing. The common thread is that the case involves a question that requires specialized behavioral knowledge to answer.
Evaluate whether your specific training, experience, and knowledge match the subject matter of the case. Being a BCBA is necessary but not sufficient. You should have demonstrated expertise in the particular population, treatment approach, or professional standard at issue. If the case involves residential services for adults with developmental disabilities, your expertise should be in that area, not merely in ABA generally. If you are unsure, consult with a colleague who has expert witness experience before accepting the case.
Warning signs include the retaining attorney expecting you to reach a predetermined conclusion, the case involving subject matter outside your specific area of expertise, insufficient documentation to form a reliable opinion, a personal or professional relationship with any party in the case that could compromise objectivity, the attorney pressuring you to modify your opinions to favor their position, and feeling personally invested in the outcome of the case. Any of these factors can compromise the quality and objectivity of your work.
The Ethics Code applies to all professional activities of behavior analysts, including expert witness work. Relevant standards include truthfulness and integrity in all professional activities, practicing within the boundaries of competence, accuracy in professional communications, and avoiding conflicts of interest. Expert witnesses must maintain the same ethical standards in legal proceedings that they maintain in clinical practice. The fact that an attorney has retained you does not create an exception to any ethical standard.
A deposition is sworn testimony given outside of court, typically in a conference room, where the opposing attorney asks you questions about your qualifications, your methodology, and your opinions. Your attorney may be present but typically does not ask questions during the opposing counsel's deposition. The deposition is recorded by a court reporter and can be used at trial. Depositions can last from a few hours to multiple days depending on the complexity of the case. Preparation includes reviewing all documents, your report, and anticipating the lines of questioning the opposing counsel is likely to pursue.
Expert witness fees are typically set as an hourly rate for time spent reviewing documents, preparing reports, and preparing for testimony, plus a separate hourly or daily rate for deposition and trial testimony. Rates vary by geographic area, the expert's level of experience, and the complexity of the case. Research typical rates for behavioral expert witnesses in your area. Your fee arrangement should be documented in a written retainer agreement and should never be contingent on the outcome of the case, as contingency fee arrangements compromise objectivity.
This creates a significant dual relationship that is generally inadvisable. As a treating clinician, your primary obligation is to your client's welfare, and your clinical relationship gives you a perspective that is inherently non-objective. As an expert witness, your obligation is to provide objective analysis to the court. These roles conflict. If a treating clinician is asked to testify about their own client, they typically do so as a fact witness, describing what they observed and did, rather than as an expert witness offering opinions about professional standards. If expert testimony is needed, it should come from an independent expert who has no clinical relationship with the parties.
An expert report typically includes your qualifications and basis for your expertise, a list of all documents and materials reviewed, the questions you were asked to address, a description of your methodology, your findings and opinions with the basis for each, any limitations or qualifications of your opinions, and your signature and date. The report should be thorough, well-organized, and written in language that is accessible to attorneys and judges who may not have a behavioral background. Every opinion stated should be traceable to specific evidence in the case materials.
Objectivity is maintained by committing from the outset to follow the evidence rather than the preferences of the retaining party. Form your opinions before discussing them with the attorney. If your analysis does not support the retaining party's position, communicate this clearly and be prepared for the engagement to end. Never modify your conclusions to accommodate the attorney's case theory. Remember that your professional reputation and ethical standing depend on your objectivity, which is worth far more than the fees from any single case. An expert known for objectivity will receive more engagements over time than one known for advocacy.
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All behavior-analytic intervention is individualized. The information on this page is for educational purposes and does not constitute clinical advice. Treatment decisions should be informed by the best available published research, individualized assessment, and obtained with the informed consent of the client or their legal guardian. Behavior analysts are responsible for practicing within the boundaries of their competence and adhering to the BACB Ethics Code for Behavior Analysts.