The types of experts that attorneys can retain are as varied as the subjects that attorneys can litigate. Expert directories are full of recycled experts paying exorbitant listing fees for your click. Search engines produce millions of moderately relevant results for any expert witness query.
Finding even one viable candidate can take days of searching for top professionals. You’ll have to read through hundreds of CVs, run background checks, and confirm litigation histories. Additionally, you’ll need to track down candidates with reasonable fee schedules and overcome logistical hurdles. In spite of all these time-consuming efforts, the importance of retaining the right expert for your case cannot be overstated.
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The overall purpose of an expert witness is to provide insight into an area of knowledge or skill that may not be readily known or understood by the average fact finder. The more complex your case, the more likely it is that you will need one or more expert witnesses. Expert testimony helps to address those questions or facts on which liability issues hinge. As such, expert witnesses can make or break a case. To ensure success, you need to find an expert with more than just the proper credentials. You need an expert who advances your case theory, trial strategy, and increases the chances of a favorable outcome.
Finding an expert witness who accomplishes this can feel like searching for a needle in a haystack. That’s why we’ve compiled this comprehensive guide to help you find the perfect expert witness for your next case.
1 | Before You Begin
2 | Starting the Search
3 | Choosing The Right Expert For Your Case
4 | Vetting and Screening Expert Candidates
5 | Narrowing Down the Field
6 | Common Mistakes And How To Avoid Them
Understand What Expert is Needed
There’s no shortage of professionals advertising as experts out there. However, finding an individual who matches the exact criteria of your case is a challenging endeavor. Use the details of your case and your case theory to keep your search as narrow as possible. Be sure you’re looking for expert witnesses with specializations, training, and certifications that enable them to speak to the central questions of fact with authority. Once you know what you are looking for, it becomes much easier to focus your search and avoid potential pitfalls.
Research the Subject Matter of the Case
One of the best ways to find an expert witness is by familiarizing yourself with resources available in your desired expert’s subject area. Reading through peer-reviewed publications, trade association websites, or articles geared towards the practice area will help you thoroughly search for and vet expert candidates. You should be able to hold an informed conversation with a potential expert about your intended case strategy before retaining them. This will allow you to determine if your chosen expert’s opinion aligns with your case theory.
Familiarize Yourself With Federal Rules of Expert Evidence
Rule 702 in the Federal Rules of Evidence grants wide judicial discretion in determining admissibility and serves as the basis of expert evidence admissibility in many jurisdictions. The breadth of Rule 702 establishes that exclusion of expert testimony is the exception rather than the rule.
Rule 703 establishes the basis on which experts may form their opinions. Under Rule 703, experts may base their opinions on inadmissible evidence so long as such information is reasonable to rely upon. Inadmissible evidence in the context of Rule 703 usually relates to hearsay issues. However, Rule 703 is not limited to hearsay. Experts may also rely on information rendered inadmissible by the other rules of evidence and the Constitution.
Familiarize Yourself With the Standards of Admissibility for Expert Testimony
Prior to trial—and ideally, prior to retaining your expert—it is critical to have a working understanding of the Daubert and Frye admissibility standards, their specific jurisdictional variations, and applicable case law.
The two major governing standards came from two seminal cases—a D.C. Circuit case, Frye v. United States, and a U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc. The general premise in Frye states that an expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. In Daubert, the Court emphasized the importance of a trial judge’s “gatekeeping responsibility” and held that the twin standards of Rule 702—relevance and reliability—are incompatible with the stricter “general acceptance” test.
The federal court system exclusively follows Daubert. However, state courts are generally divided between interpretations that mirror both Daubert and Frye. Since Each state has taken on its own interpretation of these two benchmark cases. As such, the admissibility of expert testimony can vary significantly between state jurisdictions.
Navigating Search Engine Results
Search engines are the “first stop” for a wide range of searches. However, while they can help you find expert witnesses, they do have their limits. Unless you precisely tailor your search query, you will end up sifting through a heap of moderately relevant results.
Oftentimes, finding the expert you’re looking for depends on how well you phrase your request. One way to improve your search engine results is by using the “advanced” options offered by the search engine. You can focus your search using key phrases. A key phrase is a string of two or more words that tells a search engine where focus on items that contain that particular string of words. Similarly, a “keyword” is a single word that accomplishes the same task.
Still, utilizing advanced search features won’t always yield more precise search results. It is important to remember that the first few expert results on Google are often paid listings. This means that anyone can pay to have their credentials rank in the top spot for certain search queries. Turning to search engines may seem like a simple and cost-effective route to finding expert witnesses. However, using them to locate a specialized expert who meets your exact needs can be complex and time-consuming. More often than not, they won’t produce the nuanced results you need.
Working With Expert Witness Directories
Expert witness directories can also help you find the right expert in some instances. They allow the researcher to browse for consultants in a particular area of expertise.
Many local bar associations maintain local expert witness directories. These can be useful if time or cost are of the essence. These directories can also be helpful if your case involves a feature or event that is location-specific. Many large online legal directories maintain expert directories as well. Although, you’ll need to closely tailor your search terms and take advantage of advanced search features to optimize your results. The downside to expert witness directories is that their experts usually pay a listing fee. This limits the number of qualified experts that may be members and, worst of all, may include a significant number of “experts” who spend the majority of their time in courtrooms, rather than practicing in their area of expertise.
Consulting Expert Witness Referral Services
Working with a qualified expert witness referral service (also known as an expert witness consulting firm or expert witness agency) will typically yield the best results while saving you significant time and money in both the short and long term.
Expert witness referral services can totally alleviate the burden of finding experts. They are professionals trained in connecting attorneys and litigants with experts who are custom-selected to meet a given set of specifications. This is a particularly good choice if you’re looking for an experienced expert with a narrow, or esoteric, field. Expert witness referral services have access to vast databases of qualified experts across practice areas and industries. Additionally, they have other search tools that are not widely available. As such, they have a much higher probability of locating an expert ideally suited to the needs of a specific case. Some referral services keep an internal database with a network of expert candidates.
Other referral services, like Expert Institute, custom-recruit experts on a case-by-case basis. Expert Institute’s approach for sourcing expert witnesses is particularly unique. We use data to assess an expert’s suitability for a particular case to ensure an ideal fit for the matter. Custom-recruiting your expert witness is the only way to guarantee you aren’t working with a professional who advertises their services.
Referral services like Expert Institute are particularly useful at the preliminary stages of litigation. They may have a team of on-staff experts who can assess the merits of a claim. Their team can also decide which course of action is best. If several experts are necessary for a case, a referral service may also be able to assemble a team of professionals from different industries to work together. Expert witness referral services have researchers who can identify the kind of experts that would work for the attorneys’ needs. Expert Institute, for example, offers a team of in-house physicians who can consult on cases for review of medical claims.
Historically, a common contractual practice among referral services has been to charge attorney clients a marginal rate on top of the expert’s hourly rate. The major issue with this practice is that costs in the long-term will be significantly greater than if the expert was identified through other channels. This billing structure still holds for many expert witness referral services. However, Expert Institute only charges a one-time fee to execute a custom expert search.
The best way to increase your chances of finding the right expert is through an exhaustive search approach. Seek out local university departments, consulting firms, and organizations that provide access to experts. Consider tapping into your own professional networks and those of your clients. Trusted colleagues can either serve as experts or provide referrals to other qualified experts.
Essential Expert Qualifications To Look For
What makes an expert “qualified” to assist on any given case is highly variable. It also depends on the facts of the case at hand as well as the norms and standards of the expert’s field. Choosing the right expert for your case starts with digging into the minutiae of your case fact pattern.
Typically, expert witnesses come from one of three backgrounds:
- Practitioners whose expertise comes from hands-on work in a particular industry. Physicians, auditors, and engineers often fall into this category.
- 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 or their own companies. 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 courtroom and deposition rules, but may also be confronted with accusations of being a “hired gun” more frequently than their peers in the field or academia.
Conducting a Thorough Background Check
Finding a qualified, experienced, and knowledgeable expert who is free of conflicts is certainly the goal. However, it is only half the battle. Before making the decision to retain an expert, you should always look into the expert’s CV and references to confirm that the potential expert is in good standing within their field. This can help avoid an embarrassing or potentially case-damaging situation if the expert’s stated credentials do not match reality.
A comprehensive screening procedure for each of your expert candidates should include:
- Criminal Records
- Daubert / Frye Challenges
- Litigation History and Transcripts
- Professional Licenses and Board Certifications
- Board Sanctions and Malpractice Claims
- Professional & Corporate Affiliations
- Publications and Lectures
- Subject Matter Expertise
- Conflict Checking
This one seems like a no-brainer. However, you can never be 100% sure that an expert doesn’t have any skeletons in their closet. It goes without saying that you should not retain a formerly convicted felon to testify as your expert witness. But even minor indiscretions, such as motor vehicle violations, might be used against an expert during cross examination to impeach their character and credibility. Check and double check your expert candidate’s criminal history before making the decision to retain.
Previous Daubert/Frye Challenges
When deciding whether to admit expert testimony, a judge will consider the expert’s opinions within the framework for admitting or excluding expert testimony within their jurisdiction. When vetting a potential expert, it is important to analyze court records in order to identify the key reasons for exclusion or admission of their previous opinions. Daubert / Frye gatekeeping challenges should be monitored across:
- Federal and State Cases Combined
- Jury Verdicts and Settlements
- Federal and State Agency Decisions
- Court Documents – Trial Filings, Appellate Briefs, Trial Orders, Dockets
- PACER – US Federal Court Documents
- Google Scholar – Legal Opinion Search
Litigation History and Transcripts
When reviewing an expert candidate’s litigation history, you should note their number of case reviews, depositions, and testimonies at trial. Yo should also note their tendency to work for either plaintiffs or the defense. In some instances, an expert’s litigation experience can also affect how much time initial expert disclosures will take. If the case is pending in Federal Court, it’s helpful to have an expert with federal court experience, because the disclosure process is very detailed and exacting. If the expert has no relevant experience doing such disclosures, the attorney will have to spend much more time shepherding the disclosure process. However, in many state court proceedings, prior litigation experience for the expert is not essential. When it comes to disclosures, the most important thing to determine are the rules that govern expert witness disclosures in the relevant jurisdiction.
When choosing between seasoned experts or new experts, one is not always better than the other. An expert’s level of courtroom experience can impact the way the jury perceives the expert. Hiring an expert witness with “too much” litigation experience can lead the jury to believe that the expert is a ‘hired-gun’. On the flip side, new experts can be intimidated during cross-examination and may concede points when pressed, whereas the seasoned expert’s experience may allow them to remain calm and collected during a difficult cross-examination.
Professional Licenses and Board Certifications
It’s imperative to ensure each prospective expert has a sufficient amount of relevant education, qualifications, and experience in their field. Many experts require specific licenses to practice in their field, and likewise, should possess a valid and current license when acting as an expert witness. For each expert candidate you are considering, review the current status of all of their relevant certifications, including their expiration dates and certification history.
You’ll likely encounter some experts who have completed expert certification or training programs. Such programs do not necessarily make an individual qualified to serve as an expert witness in a given case, but some programs offered by reputable professional organizations such as the Certified Fraud Examiner credential offered by the ACFE may bolster an expert’s credibility. Ultimately, an expert’s education, training, and work experience will carry more weight than a specific “expert witness” training course or certification. After all, the main question is whether the Court will view the certification favorably in the context of a gatekeeping challenge.
Board Sanctions and Malpractice Claims
Professional reputation is everything in the courtroom. Any mark against an expert witness’ reputation can be used to undermine their credibility. An ideal expert candidate is free of any board actions, board sanctions, or malpractice claims.
Professional & Corporate Affiliations
Jurors will notice an expert witnesses’ professional affiliations and pass judgement accordingly. A 2003 study published in Law and Social Inquiry found that most jurors will remember the name of an institution with which an expert is affiliated. Check that your potential experts are part of leading industry groups and take note of any impressive affiliations your expert may have. Most organizations maintain accreditation commissions and other professional organizations. Some examples include:
- Accreditation Commission for Traffic Accident Reconstruction
- American Academy of Economic and Financial Experts
- American Antitrust Institute
- American Association of Nurse Practitioners
- American Board of Vocational Experts
- American College of Forensic Examiners International
- National Association of Certified Valuation Analysts
- Human Factors and Ergonomics Society
- Society of Cardiovascular Anesthesiologists
Conversely, you should dig deep to uncover potential conflicts of interest due to business relationships to ensure none of these affiliations present a conflict during deposition or trial.
Publications and Lectures
Study publications authored by potential experts to help you head off any attempt to discredit your chosen expert’s opinion based on their previous writings.
Subject Matter Expertise
Education and experience play key roles in establishing an expert witnesses’ expertise in their field. Jurors may give a particular doctor’s testimony more weight if they recognize, for example, a doctor’s medical school as one of the best in the country. However, depending on the expert’s field, a lack of formal education or high-ranking experience may not automatically ruin an expert’s credibility. Often, a lack of formal degrees can be addressed in court by establishing the expert’s hands-on experience. In some instances, jurors may identify more strongly with a testifying expert from a “hands-on” background.
Perform a conflict check before introducing the expert to any case details. A full conflict check ensures each expert is not conflicted with any person, institution, parent company, or defendant company named in the suit. Be sure to check there are no conflicts with the expert’s availability either.
How To Save Time Vetting Experts
Naturally, all of these vetting processes require a significant amount of legwork. Conducting a comprehensive background check on each expert candidate can be exhausting and time-consuming. There’s also no guarantee that the expert candidates you’ve invested resources in locating will be the right fit for the case. Attorneys should be conscious of the time, resources, and thought necessary to thoroughly vet expert witness candidates. The databases and search functions available to an expert witness referral service, like Expert Institute, save counsel from wasting time and billable hours on a potentially futile witness search.
All expert witnesses referred by Expert Institute undergo a rigorous vetting process designed to verify their personal and professional integrity. With our multi-step screening process, we monitor our candidates through strict compliance procedures. We also conduct background checks on the expert’s licensures, criminal record, litigation history, corporate affiliations, and publications to prevent a successful Daubert challenge by an opposing party.
Once a list of properly-vetted expert witness candidates is compiled, paring down your prospects involves considering more intangible factors that may not be immediately apparent from a candidate’s CV or background check. Certain personality traits can increase an expert witness’ perceived credibility in the eyes of the jury and have a significant impact on the outcome of the trial.
How to Interview Your Expert Witness Candidates
A face-to-face interview can help you assess how the expert will appear on the stand. If an expert’s geographic location presents a challenge to this, consider arranging a video conference call. Some experts may even have video recordings of their depositions or trial testimony, This can be invaluable for evaluating an expert’s speaking abilities.
There are also a few preliminary questions every expert witness must be able to answer, such as how their research will be completed and how fees and costs will be addressed. More in-depth and conversational questions can help you qualify your expert. Our sample expert witness voir dire is a great source of questions to ask your candidates.
Evaluating Your Expert’s Demeanor
Effective communication is the #1 must-have trait in a testifying expert witness. An expert testifying in court must possess superior oratory skills so that they are able to relay information to a jury in a clear, cohesive manner while also appearing personable and trustworthy.
Of course, your expert will likely be comfortable using the technical language common within their profession. However, they should also be able to summarize complex facts in a concise way. Generally, experts that use overly technical or superfluous language do not perform well with juries.
A winning expert will have a calm and confident disposition. This is especially true when the expert is subject to depositions or cross-examinations regarding how they came to their opinion. A confident expert sends a message that they believe in their opinion, and that means the judge or jury should as well. An expert who is not confident can send a message that the judge or the jury should have reason to doubt their opinion. In turn, this may cause them to look to the other side’s expert.
The best experts are both poised to speak in front of crowds and capable of educating their audience without exuding arrogance. It’s critical that the expert exhibits basic etiquette, such as making eye contact when speaking, maintaining proper posture and body language, and not interrupting others.
Additional Expert Credibility Boosters
Because expert witness success hinges on perception to a significant degree, many attorneys consider hiring a local expert to boost their expert witness’ credibility with the jury. Of course, the effect of working with a local expert differs from case to case and venue to venue. In jury trials, counsel’s analysis must center on how credible the expert will be to that particular jury. Juries may more readily believe experts that are associated with places and institutions that are familiar to them. In venues with a well-respected local medical institution, for example, jurors may tend to find a physician from that institution more credible than an out-of-towner. But hiring a local expert is not without drawbacks. Opposing counsel can easily argue bias when a local witness testifies in favor of someone they are familiar with.
Bottom line: if you believe the jury in your case will come into the courtroom with a bias against out-of-town expert witnesses, then it would be a mistake not to try to find someone local.
It’s no coincidence that the most common mistakes attorneys make when searching for expert witnesses stem from procrastination. While attorneys who are new to retaining experts often make this mistake, sometimes seasoned litigators make this mistake too. The more you rush the retention process, the less likely you are to find the precise combination of knowledge, skill, and communication ability that you need in an expert witness. The expert you do find might be adequate – but “adequate” may not be good enough to carry the day for your client.
The clearer you are with the expert about what you need, the easier it will be for the expert to produce high-quality results. An expert who is rushed through examining the case may also produce an incomplete or inconsistent testimony, which may not only fail to help your case, but actually harm it. Many cases have been lost where an expert was unprepared to deal with opposing counsel who had done their reading before they arrived. To avoid these issues, it’s best to prepare your expert witnesses by briefing them on courtroom etiquette.