Finding the ideal expert witness can feel like prospecting for gold. Once you’ve found the person with the right blend of skills, experience, and personability on the stand, you may wish to bring them into every conceivable case where they could be of use.
While cultivating relationships with expert witnesses can be a good thing for your clients and your staff, these relationships should be consistently reevaluated. A long-standing expert witness relationship could start to damage your cases and your credibility.
Here are three signs that it’s time to start working with a new set of expert witnesses:
1) Cross-Examination No Longer Focuses on the Issues
You and your favorite expert handle direct examination very well. You’re familiar with the way your expert frames answers and your expert understands where you’re going with certain questions. As a team, you and the expert are able to lay out all the important information for the jury quickly and clearly.
However, the longer you work with a particular expert, the easier it becomes for opposing counsel to discredit your expert whether or not the expert’s work is unassailable. In some instances, opposing counsel will attempt to discredit your expert by painting him or her as a “hired gun” even if their methods, reasoning, and results are solid. Instead of focusing on the issues in the case, your expert’s testimony becomes about whether they should be on the stand at all – muddying the waters for the jury and making a positive outcome harder for your client to attain.
2) Your Expert’s Profession is Testifying
While it’s important to fight the appearance that your expert witness is a hired gun, it’s equally important to prevent your witness from actually becoming one. The longer an expert witness spends on the stand instead of in the field, the more he or she becomes vulnerable to two lines of attack.
First, each decision to use one’s time in a certain way precludes using that time in any other way. Excessive time spent in court prevents your expert witness from doing research or work in his or her field of expertise.
The more time spent away from practice in the field, the more opportunities the expert misses to learn about new methods and techniques, strengthen arguments for or against certain practices, or gather information to illuminate why certain facts are embraced while others are discarded or debunked. Opposing counsel will be quick to point out that your expert witnesses may have missed some vital data because he or she was busy testifying on behalf of your clients – again.
Second, the more time expert witnesses spend in court, the more potential conflicts of interest they accrue. If your expert witness is increasingly conflicted out, or if you are spending more time than you once did determining if the expert is conflicted out, it may be time to cultivate a relationship with an expert who spends less time on the stand.
3) You Missed Something
Some of the best arguments for rotating your expert witnesses come from the readiness of opposing counsel to pounce on any perceived weakness or flaw in your current expert. One of the best arguments for seeking another expert opinion, however, arises in a situation where opposing counsel does not intrude at all: the consulting expert relationship. A non-testifying, consulting expert witness can be a valuable source of information for you and your legal team. Your consulting expert can help you understand technical issues and build a strong case.
However, working too long with one particular consulting expert limits you and your team to that expert’s particular skill, background and perspective. As the relationship becomes more comfortable, it also increases the risk that both attorney and expert will accept the expert’s perspective uncritically – and miss a key piece of information or analysis as a result.
If you or your expert missed something crucial, or if missing small details occurs more often than it did, it may be time to talk to a new expert.