In any case where the subject matter at issue is considered particularly complex or scientific in nature, an expert witness will be needed to effectively explain the information to the fact finder. In some instances, the services of a non-testifying expert may be used for consultative advice. Either way, finding the right expert for a case can seem daunting. Below is a guide to finding an expert that advances your case theory and trial strategy, and hopefully, increases the chances of a favorable outcome.
Research the Subject Matter First
If an attorney is handling a case that requires expert testimony, it may seem tempting to let the expert take the reigns in some respects. However, in order to properly search for and vet an expert, it is important for the attorney to be familiarized with the material. In order to make an informed decision, an attorney needs to know what he is looking for and must be able to hold a conversation with the potential expert about his intended case strategy. If an attorney has no idea about what the subject matter involves or what the necessary research and preparation of the expert testimony entails, it is more likely that the chosen expert might not be a perfect fit for the case. Secondly, by familiarizing oneself with the subject matter, i.e., through reading peer review publications, digests, or articles geared towards the practice area, an attorney will have a better idea of where to find an appropriate expert.
Use Multiple Resources to Find an Expert
On the same note as the above point, it is important to look for an expert in the right places. Journals, periodicals, trade association websites, and university publications related to the area of expertise are all great resources for finding potential experts while also staying informed on the subject matter. Expert consultant firms like The Expert Institute are a very reliable way to connect with an expert witness tailored to your case’s particular needs, since they will have access to the latest tools as well as professional researchers. Lastly, word-of-mouth referrals from colleagues that offer you their first-hand experience can be an excellent tool in evaluating a potential expert.
Thoroughly Vet Your Expert’s Qualifications
There are many things to consider in evaluating potential experts, but first and foremost, they should possess the requisite education, training, skill, knowledge, and experience to be considered proficient in their respective fields. An expert’s credentials are also largely dependent upon their specific practice area – formal academic training may not be as important as real-world experience in certain instances. Reviewing an expert’s curriculum vitae is a start, but if available, you should also review any past work of the expert, such as written publications, studies, experiments, or even past trial records.
In addition, it is never too early to consider the importance of your expert successfully withstanding a Daubert challenge, which is when the opposing party seeks to exclude the testimony of an expert witness that is unreliable or irrelevant to the facts at issue. When deciding whether to admit the expert’s testimony, the Court will consider a non-exhaustive list of factors enumerated in the seminal Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Because the exclusion of an expert’s testimony can be disastrous for a case, it is important to keep the possibility of a Daubert challenge in mind when evaluating a potential expert.
Ask About Potential Conflicts
Similar to the threat of a Daubert challenge, you also want to ensure that any potential experts do not present any conflicts of interest that may potentially disqualify their testimony. An expert’s testimony may be disqualified for substantive reasons, for example, if the science behind the expert opinion is considered novel and untested. An expert may also be disqualified due to conflicts of interest stemming from previous relationships, such as the expert having been previously employed by or hired as an expert for the opposing party. Any potential conflicts should be openly discussed with the expert prior to engagement.
Evaluate Your Expert’s Demeanor
While obtaining a qualified, experienced, and knowledgeable expert free of conflicts is certainly the goal, it is only half the battle. If you are planning for your expert to testify in court, the expert should possess a number of valuable qualities beyond intellectual capacity, such as oratory skills. First, it is important to find an expert who not only has a strong grasp of the material but also is able to relay that information to a jury in a cohesive, straightforward, and clear manner. Generally, experts that use overly technical or superfluous language do not perform well with juries. The point is for the expert to break down technical information in a concise and easy to understand way, not for the expert to merely showcase his breadth of knowledge. Whenever possible, an expert should strive to speak in layman’s terms. Likewise, the use of everyday analogies or relatable anecdotes in explaining the material can work wonders for a jury.
On the same note, an expert should appear personable and trustworthy. While these qualities are relative to a certain extent, it is important that the expert exhibits basic etiquette, such as making eye contact when speaking, maintaining proper posture and body language, and not interrupting others. During cross examination, an expert may become more adversarial with opposing counsel, especially if the expert feels as though his or her opinion or work is being attacked. However, generally speaking, a combative expert does not do any favors for your case. On the contrary, an expert should be able to maintain composure when confronting the opposing party. In order to get a sense of your potential expert’s demeanor, engage in face-to-face communications as often as possible prior to entering into a retainer agreement. Some experts may even have video recordings of their depositions or trial testimony, which is an invaluable tool in evaluating the expert’s speaking abilities.
Engage The Expert As Soon As Possible
Only after you are sure that your expert meets all of your criteria, it is a good idea to engage them sooner rather than later. An expert that is engaged not long after the inception of the case can provide innumerable benefits throughout litigation. Particularly during the discovery stage, an expert can help in identifying important materials to request, issues to investigate, and individuals to depose. In addition, the experts will have more time to conduct any necessary research and develop their opinions.
Overall, it may seem overwhelming to find an expert, particularly if it is a practice area in which you are not well versed. But by approaching your search step-by-step, you are likely to find an expert perfectly suited for your case’s needs.
