In any area of the law, the quality of expert witnesses can range from excellent to very poor. Moreover, attorneys can spend thousands of dollars for an expert opinion that they need to prove their case. But while obvious qualifications such as an expert’s education, skills, and work experience are reliable, objective indicators of an expert’s suitability for a case, there are a number of intangible, personal qualities that are equally important to consider. This is why many attorneys look for the following list of traits in expert witnesses to make sure that they have an expert whose opinion will be believed by the judge or jury.
Confidence matters. Expert witnesses are subject to depositions and are often cross-examined by opposing counsel regarding how they came to their opinion. What is more, expert witnesses may have to testify in front of the judge or jury and their opinion needs to be believed by people who are not familiar with their area of specialty. A confident expert sends a message that they believe their opinion and that means the judge or jury should as well. An expert who is not confident about their opinion can send a message that the judge or the jury should have reason to doubt what they are saying which may cause them to look to the other side’s expert.
Expert witnesses need to have scientific or specialized knowledge that is the basis for their opinion. Many times, an expert will say that they base their opinion on their years of experience. However, if you are dealing with a scientific or medical opinion a Daubert objection could potentially be raised if they have no peer reviews or research journals to use to support their opinion. In hiring the expert witness, you should ask what type of research that they looked at or relied upon in forming their opinion or if their methods are also used by other members of their specialty.
An expert opinion is delivered primarily in three stages. First, you have the time where the expert prepares a report, documenting their findings, and the methodology they used to obtain them. Second, there is the deposition where the expert testifies regarding their opinion and is cross-examined by opposing counsel. Third, you have when the expert is testifying in front of a judge or jury. Many expert witnesses testify in multiple cases and they may not remember everything they say in their reports or in their depositions. This can cause inconsistencies which can be pointed out by the opposing party in order to diminish the opinion of your expert. This is why it is important that your expert is consistent through the entire process of preparing of the report, the deposition, and testifying at trial.
Consistency also matters from case to case. Let’s say an expert gives an opinion on the causes of heart disease in one case where he says that smoking does not cause heart disease. Then, let’s say he gives a second opinion where he says that smoking can cause heart disease. Let us further assume that we are in a county where the law firms talk to each other and exchange transcripts of depositions between cases. This opens to the possibility of your expert witness’s opinion being impeached by an inconsistent opinion in a prior case.
4) Attention to Detail
In litigation, details matter. Whether you looking at a long list of medical records or a compilation of complex engineering schematics or patents, expert witnesses need to have a high level of attention to detail. The failure to exercise high attention to detail can result in the expert being crushed in a cross examination for failure to take the proper time to examine the facts before rendering an opinion. One of the most common ways to undercut the opinion of an expert witness is to point out all the things that were not done or not reviewed in rendering the opinion.
Expert witnesses need to convince others that their opinions can be relied upon. Trustworthiness begins with appearance. Expert witnesses should be properly and professionally dressed for their appearance in court or at a deposition. Expert witnesses should speak with confidence and should be attentive when rendering their opinion. Trustworthiness also means that they are not willing to ignore facts that are unfavorable to the side that hired them. Reputation matters when we are speaking about trustworthiness and experts should avoid rending ill-formed opinions that could damage their credibility.
All expert witnesses should have a detailed curriculum vitae that outlines their educational background as well as any licenses, publications, speaking events, and honors that the expert has received. Expert witnesses should have top-level educational credentials and should have stanched the level of experience in the area that they are rendering an expert opinion. While relevant professional experience is always a requirement in an effective expert, additional experience with public speaking, teaching, or other interpersonal activities can indicate that a potential expert will likely be a strong choice in a testifying role.
7) Effective Communication
Expert witnesses need to be good communicators. This means that they have to be comfortable using the technical language that is common within their profession. They should be able to speak without hesitation or needing to refer through records in order to render their opinion. Good experts need to be capable of understanding the questions that are posed to them by the attorneys and specifically answer the question asked. An expert who is a good communicator can summarize complex scientific, medical, or specialized facts in a concise way, which allows the judge or jury to understand what they are saying.
One of the most important functions of an expert witness is the preparation of a detailed written report of their opinion. The expert report should compile all records that were reviewed in order to render the opinion and outline a concise summary of their findings and recommendations. Good experts will often ask you to send them records because they believe they need to review additional information to properly support their opinion.
One of the techniques attorneys use in trying to diminish the opinion of an expert is pointing out things that they are testifying in deposition to which are not contained in their expert report. The expert report should be free of typographical errors and should have proper chronologies, or a list of all relevant facts that were reviewed to come to the opinion. Good expert reports also cite to relevant authorities in peer-reviewed journals or other sources to bolster their testimony.
9) Ability to Improvise
Finally, good expert witnesses need to be able to improvise. One of the most important times in litigation is when an expert witness is asked a question that they are not prepared to answer. Expert witnesses are often asked hypothetical questions that they are not prepared to answer and knowledgeable experts need to be able to come up with answers to complex hypotheticals on the spot. A common trick that attorneys used in order to diminish the opinion of an expert witness is to get them to say, “I don’t know” to a large number of questions. Expert witnesses should be able to think on their feet based on their training to answer questions they did not anticipate. However, they should always be careful to only answer questions that fall within their specific area of expertise.