Litigators often face a tough choice when selecting expert witnesses for a case. Should you work with a first-time expert—that is, someone with the right qualifications but no litigation experience? Or do you go with an experienced expert who has both exceptional qualifications and experience as an expert witness?
Some attorneys are inclined to select a first-time expert after being dazzled by the expert’s credentials or enthusiasm for the case. Other attorneys suggest that an expert witness who doesn’t make a habit of testifying can more easily be portrayed as a knowledgeable source. Plus, these experts will appear more loyal to the facts and specifics of their field than to any litigation party. Sometimes the reason for wanting to work with an inexperienced expert could even be that they are a known entity. Perhaps the expert is someone the attorney already has a relationship with and trusts.
A first-time expert could possibly help an attorney avoid opposing counsel’s attempt to paint the expert as a hired gun. Though, there are several drawbacks to working with an expert with no litigation experience attorneys must consider.
1) Learning the Litigation Ropes Takes Time
The primary drawback of working with an inexperienced expert witness is time. First-time experts always need a lesson on the relevant legal standards and how to comport with them. As a result, a legal team may spend more time reviewing the expert’s report or preparing the expert to provide testimony than originally anticipated. And of course, all of that time is on the clock. More often than not, attorneys need to replenish an expert’s retainer agreement much faster than anticipated. Cutting corners on the time spent with an experienced witness, however, can spell disaster. It’s imperative that a new expert receive the proper foundation required for success in the current case
An expert with a history of participation in the litigation process will have a much stronger understanding of the trial preparation and performance process. Experienced experts already understand processes for record review and consultations, conducting expert tests, report writing, depositions, and court appearances. They also tend to be familiar with confidentiality and expert testimony requirements. Some experts are well-versed in the requirements for qualifying an expert witness and admissibility of an expert’s report, particularly if most or all of their service as an expert has taken place within the same jurisdiction. This means that more than likely, the expert’s report will need fewer revisions.
Attorneys will generally get more bang for their buck when they select an expert who has more litigation experience because they spend significantly less time (and money) preparing an experienced expert.
2) Establishing Case Theory May Be Tricky
It’s important to remember that the purpose of introducing any expert testimony is to educate the fact-finder on specialized or technical issues. But an expert who has litigation experience is much more familiar with legal standards necessary to establish liability, causation, and damages.
Experts who are new to legal consulting work may not understand that, although causation and liability are closely linked, they are two separate questions. It will take the attorney time to explain these concepts to a new expert. Plus, there’s always the risk that this framework may be tricky to grasp.
When discussing whether to choose a seasoned expert or an inexperienced expert, consider the gravity of the issue in the case and the stake of the matter at hand. A seasoned expert will likely be a better advocate for the highly-contested issues such as standard of care in medical cases. Seasoned experts will also be more skilled in speaking to liability and causation involved in multi-million- or billion-dollar damages. In high-stakes litigation, stronger experts almost always lead to larger payouts.
3) Inexperienced Experts May Overstep in Their Opinions
The worst-case scenario for an attorney is the exclusion of their expert’s testimony for straying into the judge’s province. Under Federal Rule of Evidence 704(a), expert witnesses may offer testimony on factual issues that a jury will decide as the “trier of facts.” They cannot, however, render legal opinions or advise a jury on the law. They must not even tread too closely to legal opinions by asserting what law applies in a case. Further, experts may not infer that a defendant violated the relevant law. This is the sole arena of the judge. They will toss expert testimony out if they perceive a whiff of legal opinion in the expert’s testimony.
First-time experts could also run into the problem of offering net opinions. One way to explain the net opinion problem is to liken it to a math problem. Just as teachers often expect students to “show their work” when solving an equation, courts expect the same of experts. In a legal setting, experts must lay out the evidence and methods that informed their conclusions. An expert cannot offer an opinion without the support of facts, data, principles, or methods. It’s similar to how the “show your work” requirement in math class can’t be met by simply writing down the answer.
On the witness stand, experienced experts use their past experience to inform and improve their methods of providing testimony. With practice explaining complex topics to juries, these experts can often break down highly technical subject areas into clear, simple explanations that juries and judges can easily grasp. In turn, this makes the attorney’s case that much more airtight.
It takes great consideration when choosing between an experienced expert and an expert who has never been inside a courtroom. But an experienced expert is the best fit for any high-stakes or time-sensitive case. Retaining an expert with prior consulting experience makes the legal team’s job that much easier.
Of course, any expert witness should be selected only after research into both their qualifications and more intangible qualities. The optimal experience level for an expert witness will always be the one that best fits within the context of the expert’s qualifications and of the case as a whole. The best way to ensure the most qualified expert possible is to custom-recruit a seasoned professional via Expert Search. Through an Expert Search, the Expert Institute team finds the ideal expert witnesses for every case. Researchers combine a proprietary analytics engine alongside the case facts, case theory, and client needs in selecting candidates. This ensures the right expert, every time, for every case.