The more complex your case, the more likely it is that you will need one or more expert witnesses to explain the intricacies to the judge and jury. Expert testimony helps to address specific questions or facts on which liability issues hinge, and it can be essential in quantifying damages.
Because experts play vital roles in a world of ever-increasing complexity, attorneys and their staff can benefit greatly from understanding how to choose the expert witnesses they will use in their cases.
Do You Need an Expert?
The first question many lawyers ask when confronting the minutiae of a case is “Do we need an expert?”, followed closely by “If so, what type of expert do we need?”
Your case may benefit from expert testimony if:
- The facts themselves are not easily comprehended with ordinary or “common sense.”
- The facts require the trier of fact to reach a conclusion that is not easy to understand or to reach without specialized knowledge.
- The case involves facts requiring a knowledge or background the judge does not possess.
No one can be an expert in every subject. Expert witnesses help to fill this gap by explaining sophisticated details in a way that the trier of fact can understand, even without similar expertise.
If the case appears to demand expert testimony, consider next what type of expertise is required. For example, a case involving an antitrust claim may call for an economist to explain the details of marketplace competition, while a medical malpractice claim may require a physician to articulate the standard of care and the ways in which it was breached. Finally, consider whether your expert may be necessary in order to help establish the extent of harm suffered and the likely future costs from that harm.
Choosing the Correct Expert for the Case
Often, determining whether the case demands an expert is less difficult than finding a qualified expert who will agree to testify. Typically, expert witnesses come from one of three sources:
- Practitioners whose expertise comes from hands-on work in a particular industry. Physicians, auditors, and engineers often fall into this category. Some of these experts operate their own consulting firms, with expert testimony making up some or all of their workload.
- Academics whose field of study encompasses the questions or facts at issue in the case. Academics with experience in specific methodological approaches, such as statistical analysis or assessment, may also fall into this category.
- “Professional experts” who work with expert consulting firms. These individuals often start their careers as academics, practitioners, or both, then transition into providing expert testimony in their field as a part- or full-time career. They are often well-versed in the applicable courtroom and deposition rules as well as in their specific fields.
Working with a qualified expert witness referral service will typically yield the best results when searching for experts, and save you significant time and resources. That being said, you should always make sure that the experts provided fit the bill for who you are looking for. You should confirm that potential experts, whether they are in academia or private practice, should be in good standing within their field and perform work with a reputable organization. Vetting experts, while also a time and resource intensive process, is mandatory to avoid unpleasant surprises.
Narrowing Down the Field
Once a list of expert witness candidates is compiled, several factors should also be considered before a final decision is made:
- Conflict check. Check to ensure there are no conflicts, either with other interested parties in the case or with the expert’s availability. Perform a conflict check before introducing the expert to any case details.
- Ask about prior experience. Has your candidate testified before? If so, what happened? Federal rules require experts to list the cases in which they have testified in the previous four years. Consider the context of previous cases, any rulings made on the expert’s testimony, and any factors that might damage credibility (such as an expert on breath testing devices who has only ever testified for defendants in drunk driving cases).
- A background check into the expert’s CV and references can help attorneys avoid an embarrassing or case-damaging situation if the expert’s stated credentials do not match reality.
- Interview the candidates. A face to face interview can help you assess how the expert will appear on the stand. You can also ask specific questions, such as how research will be completed and how fees and costs will be addressed.
With careful consideration and the help of experienced consultants, finding an expert can be among the most productive and efficient case preparation tasks.