Avoiding “Hired Guns:” Why Litigators Need Authentic Expertise

Carolyn Casey, J.D.

Written by
— Updated on August 27, 2021

Avoiding “Hired Guns:” Why Litigators Need Authentic Expertise

Your goal as a litigator is to win favorable outcomes for clients—pure and simple. When advocating for your client it’s important to recognize that “hired gun” experts can create problems for your case and ultimately deter you from prevailing. “Hired guns”—experts that adjust their opinions and methods to suit the desired outcome of the attorney paying them—will hurt more than help your cases. You’ll want to avoid such experts at all costs.

You want the jury to perceive your expert witnesses as authentic and credible. Therefore, the expert witnesses you choose must provide objective and unbiased testimony on the issues at hand. Certainly, you want your expert’s testimony to help the jury understand the scientific or technical merits of your case. But to successfully secure the verdict or settlement your client seeks, you need authentic expertise that a jury will believe and that will withstand any challenges.

Authenticity Rules the Day

Expert witnesses are required to present objective, sound opinions that help juries determine facts. As jurors hear testimony, they process evidence on two levels. One, they take in the content an expert conveys during testimony. At the same time, consciously or unconsciously, jurors evaluate the character and authenticity of the person giving the testimony.

Jurors may not perceive experts that come across as pandering to the lawyer that hired them as authentic. An expert that says “yes” to every question asked by the lawyer that employed them or is overly ingratiating to that lawyer may seem like a “hired gun.” An expert that doesn’t discuss both sides of an issue or fails to give straightforward, complete answers to an opposing counsel question may also appear inauthentic.

When jurors believe your witness is giving biased testimony on your client’s behalf, all authenticity is lost. Jurors will see your “hired gun” as biased and not credible. The content of their testimony will, therefore, have little or no positive impact for your case.

You Want Real Advice

When you hire an expert, you are also looking for someone who can help you understand the technical aspects and nuances of a case as you design your strategy. You don’t need a “yes person” expert who will only tell you things you want to hear because you are paying them handsomely. A “hired gun” expert who is known for always determining that a defendant, for example, is mentally incompetent to stand trial, may fill you with an overabundance of confidence that you can prevail on this argument. Accordingly, you and the expert may be woefully unprepared to handle challenges to your position.

Credibility Shredding

Obvious “hired guns” are easy targets for opposing counsel to shred during cross examination. First, they’ll go after the money influencer. Expect questions like, “how much money has the defendant paid you for your testimony today?” Or, “how many times have you testified that a defendant is mentally incompetent for trial when working for this or other lawyers?” The expert’s answers may just shred their credibility in front of the jury and judge.

If the opposition is trying to portray your witness as a “hired gun” they may also attack their professional ethics. The American Medical Association Code of Medical Ethics Opinion 9.7.1 states among other things that physician-witnesses must “not allow their testimony to be influenced by financial compensation” and must “evaluate cases objectively and provide an independent opinion.” The opposition may try to raise doubt in the jury’s mind about whether your witness strayed from these standards in your case. If your witness has had a complaint filed before a medical specialty society (MSS) grievance board, things could look worse.

Another likely tactic from the opposition will be to bring in their own expert witness to refute your witness’ testimony or report. This extends the trial, increasing costs and laying more prep time onto your shoulders to cross-examine this new witness bent on discrediting your “hired gun.”  The refuting expert may also confuse the jury and undo any good your expert did in the first place.

Disqualification Based on Bias

Another reason to avoid “hired guns” is that they could cause potentially disastrous expert witness disqualification hearings. A judge can disqualify your “hired gun” expert if they determine that they were swayed by evidence, injury, or the client. When opposing counsel sniffs bias in your witness, a common tactic is to attempt to have them disqualified and their testimony thrown out by a judge.

If your witness is disqualified, they can’t provide evidence, testimony, or a report in the lawsuit. If you have paid your expert hefty fees to testify or worse write a report on the impact of chemical seepage from a client’s factory on the local environment, for example, disqualification means you (or your client) will have spent a lot of money for naught.

In addition, the disqualification of your expert will cast a negative light on you and your entire case. The jury may feel that you disrespected them by bringing in bias or phony evidence from a “hired gun.” The jury may then doubt everything you’ve said and not believe all the other evidence presented in the case. This is a risk you don’t want to take.

Authentic Experts for Your Cases

Rather than being tempted to use a “hired gun” the best approach is to be confident in your case strategy and find the most credible, knowledgeable, and authenticate expert who can address the technical aspects of your case.

If you need assistance finding the best authentic expert for your cases, consider using a professional expert witness referral service to custom-recruit the expert who meets all the relevant criteria for your case. Services like the Expert Institute can source, vet, and connect you with the right expert for your case in just 3-5 days, ensuring your expert has no skeletons in the closet and saving you critical time to prepare for the case.

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