Expert witnesses, and their participation in significant cases, are vital to an attorney’s success… or failure. Selecting the right specialist the first time round is imperative – and to ensure the best selection, attorneys need to distinguish between perfect experts, and those that might not suit their unique needs.
A strong CV and relevant experience do not make an individual a great expert witness. Based on our experience, we have compiled a variety of factors that can be a cause for concern when deciding on the right candidate. While a great candidate may still display one of these factors at first glance, a multitude of red flags should likely lead you to look for a different expert. The following ten indicators have helped us in identifying such red flags.
1. If the specialist spends a disproportionate amount of time as an expert witness, beware.
Generally, great experts are practicing in their respective field for the vast majority of their professional time. While testimony experience is valuable, specialists who spend too much time working as expert witnesses (i.e. working in the courtroom) should cause some hesitation on part of the attorney. There’s a fine line between being experienced testifying and being over-used.
2. The specialist requires a fixed rate retainer that is far in excess of the amount of time they will need to review materials.
On certain cases, reviews may take less or more time than a specialist requests in his/her fixed rate retainer. Fixed-rate retainers should be in accordance with the estimated work that will be performed. For example, a mandatory, ten-hour, upfront retainer is likely excessive if the specialist only has to review ten pages of hospital charts and have a brief discussion of his/her findings with the attorney. If the potential witness insists that this is his/her policy, caveat emptor. This may be a sign of what’s to come. If you suspect an expert is charging far more than he/she deserves, you should be candid and express concern. An honest expert will be willing to charge a fair price for work rendered.
3. Beware of a specialist who is difficult to reach.
An expert, beyond the basic responsibilities of providing testimony and serving as a witness at trial, is there to help guide you along as you work on a case. In this way, specialists can play a fundamental role in the development of any strong case. Either for the defense or the plaintiff. If a specialist is difficult to reach, either by email or phone, before the engagement begins, they will probably be just as difficult to reach when you need them most. Express your concern and explain that it’s imperative you’re able to reach him/her without scheduling an appointment 72 hours in advance through a cranky secretary. If the expert still doesn’t get that message, you may want to consider finding a more accessible candidate.
4. The specialist is not presentable to the jury.
If your case is likely to go to trial, a specialist’s ability to testify in court is key. A number of factors need to be considered, with the jury’s perception in mind, when considering a potential witness. Think up an “ideal candidate”. Include the age of the potential candidate. Expert witnesses who are too old or too young can cause juries to be skeptical. Location can also play an important role. Expert witnesses from far away may leave the jury wondering why you couldn’t find someone closer to support your argument.
5. The specialist has no experience testifying.
Past testimony experience is beneficial for a number of reasons. Firstly, certain practitioners may not be accustomed to the processes of testifying in front of jury. Those who have not had direct, testimony experience may have difficulty articulating their specialized knowledge to a jury. Or they may have trouble keeping up with a case that may take hundreds of hours of research, preparation and organization. On the other hand a well prepared “inexperienced expert witness,” that presents well can sometimes instill greater confidence in a jury due to their “lack” of professional expert witness work. Some attorneys prefer to work with “rookie” expert witnesses who lecture frequently at conferences or in an academic setting. They’re usually more comfortable discussing complex issues in front of a group of lay people – and they have experience articulating their thoughts, professionally.
6. The candidate advertises as an expert witness.
If your specialist seeks expert witness work in a public directory, you may want to dig a bit deeper. Are they no longer busy with their core professional responsibilities? Do they need extra $$$ or are they genuinely interested in legal case review work? Finally, you’ll also want to consider the approach made by the opposing counsel when they catch wind that your expert advertises his/her availability as a ‘gun for hire.’ Surely, there will be difficult questions asked about the candidates’ willingness to serve as a witness during cross examination. It’s always better to be prepared for these questions, than it is to be caught off guard… do your research!
7. Your expert witness only testifies for the defense… or even worse, for the plaintiff.
It’s generally conceived as a negative if your expert only testifies for one side, and never for the other. Chancess are, they may have said something in the past that will contradict supporting your case. You should always find out if they have worked on a case similar to yours, or a case that involves related complications. If so, dig deeper and try to get your hands on the transcripts or speak with attorneys they’ve worked with previously.
8. Professional, disciplinary actions brought against the specialist.
Most experts are still practicing in some capacity, and thus, can be subject to disciplinary actions. Professional licenses can be suspended, putting any subsequent testimony by the professional into question. Also, different practitioners, especially in the medical field, are subject to lawsuits brought against them for their level of care. Both circumstances may lead to doubt in their proficiency and status as an expert, which could weaken your case.
9. Disparity between expert’s initial remarks and testimony.
Some specialists, when first discussing a case, provide excellent feedback, specific assertions, and a clear explanation of their reasoning. Once they’re required to testify and provide a sworn affidavit or present their views to a jury, some experts can quickly become more reserved and ambivalent. A bad expert may no longer display the same conviction that led you to initially select him or her. This flip-flop can prove disastrous if you go through the process of bringing a specialist onboard, paying hundreds of dollars per hour for him or her to review a case, only to then have them provide an unassertive affidavit of merit or deposition / testimony. An attorney should cover all aspects when first discussing the case, making certain that all statements by the candidate will also be made while testifying to ensure there won’t be a sudden change of heart.
10. The candidate does not have the same specialty (or sub-specialty) training as the defending party (or the opposing party’s expert).
It is important that the specialist have the same training or certifications as the defending party. For example, a medical doctor (not an osteopathic doctor) should be brought in to testify regarding actions by another medical doctor. Additionally, if a surgeon has a sub-specialty in intensive care, the expert should also have a sub-specialty in intensive care. By finding a candidate that matches the party in question, the testimony will be deemed more relevant and is less likely to be challenged by opposing counsel.