There are hundreds of types of expert witnesses used in litigation – and all of them are different. Not only are there different kinds of experts in various fields, there are experts with different levels of experience. Especially when it comes to testifying in a courtroom or on the record for a case. When choosing between seasoned experts or new experts, one is not always better than the other. There are more than a few things to consider when choosing between an expert with considerable experience in litigation and an expert who has never been inside a courtroom.
Know what kinds of issues your expert must testify about
When discussing what to consider when choosing between seasoned experts or new experts, many of the attorneys we spoke with emphasized the importance of understanding the issues on which an expert is expected to testify. Attorney Paul Hines of Gasiorek, Morgan, Greco, McCauley & Kotzian says “use the ‘seasoned’ expert as the advocate that you need for the highly contested issues in the case such as ‘standard of care’ in the medical cases, but use the new expert if you need to educate a jury about more purely factual matters, such as the medicine involved in the case or the nature and extent of the injury.”
It’s always important to remember that the purpose of introducing any expert testimony is to educate the fact-finder on specialized or technical issues. However, sometimes an expert who is more familiar with legal standards is desirable to establish causation. Especially in medical malpractice or personal injury cases.
However, other attorneys disagree. Tom Jacob of Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham says that in his cases, “we rarely if ever look at how much expert consultation our experts have done. More important is experience in his or her specialty, research he or she has done, and his or her training and education.”. Attorney Betsey Herd of Morgenstern & Herd notes “I have used principal investigators who have never testified before because they are the definitive experts in their field, since they are limited in number around the country. The defense knows you have a strong case when one of these experts testifies for your injured victim.”
Different levels of experience can impact jury perception
An expert’s level of courtroom experience can impact the way they are perceived by a jury. This fact touches upon the common “hired-gun” problem with respect to expert witnesses. This is when juries discredit the testimony. Usually because the witness appears to be an expert in litigation and not their purported area of expertise. “We do try to combat perceived bias of expert witnesses we have used time and again. We usually put in a series of questions for those experienced experts asking how many cases we have sent them for review and their level of involvement in the case. This hopefully gives them credibility and takes away the ‘hired gun’ mentality,” says Blake Smith of Parham Smith & Archenhold.
Matthew Nasrallah of Robertson, Bodoh, Nasrallah agrees. He brings up an important point about expert witness documents. “One advantage to an expert with little or no litigation experience is that the jury is less likely to view the, expert as a hired-gun. They have the appearance of less bias. They also do not have a large body of prior depositions and reports that can be utilized by the opposing counsel for impeachment.”. In addition to the perceived bias of an expert witness with “too much” litigation experience, it is important to remember all the related testimonial documents or publications written by the expert that can be used by opposing counsel to impeach them.
However, there are instances where using a seasoned expert may be a wiser choice than an expert with too little litigation experience. Paul Hines explains that “too many times I have seen the new expert too willing to concede points when pressed on cross examination. The seasoned expert has ‘been there, done that’ before and is not nearly as likely to be intimidated during cross-examination. In short, picking the expert is dependent on teacher vs. advocate.”
Consider how much time the expert has to work on the case
Choosing between a seasoned expert or a new expert is not always a clear choice. Sometimes, an expert with little experience in the courtroom may have a better background in their specialty area. They may have a very rare skill, or even a strong or friendly personality that will connect well with jurors. However, a well-qualified expert may be oblivious about the operative legal standards in a case. In other situations, an expert with enough litigation experience might be perfect for the issues. However, they may lack an engaging delivery or presentation. In either instance, the choice of which is best depends on the time the expert witness actually when preparing for the case.
For example, when considering to use an expert with less litigation experience, such as a university professor, Blake Smith notes “often times we find that experts cancel one another out because of the jury’s belief that they are both hired guns. Using someone such as a university expert or a local expert provides more credibility in jurors’ minds about the witness and their opinions. There are always a series of questions to both sides about the amount of income derived from expert testimony.”. When an expert has more time to work on the case, especially from the early stages of deposition to trial, then there is more flexibility to choose newer experts who may not have too much litigation experience.
Do your own research before selecting an expert
Due diligence is required regardless of whether an attorney is choosing a seasoned expert or a newer expert. According to Tom Jacob, “part of [choosing the right expert] is doing work before hand to make sure you have a knowledgeable expert. We try to work up our cases so that we have a good grasp of the science and the facts before suit. That means getting experienced and knowledgeable experts in their field.”. Matthew Nasrallah highlights the main issues that attorneys should be aware of when working with an expert. “What concerns the attorney is whether the expert can handle himself or herself under cross-examination and whether there is something in an expert’s background or experience that might result in serious bias, impeachment, or even a Daubert exclusion.”
However, doing background research on an expert witness is not limited to their experience and qualifications. An important part of knowing about an expert is to learn about the expert’s more intangible qualities. “I had an inexperienced expert that had failed his sub-specialty boards and I did not know it. It was my fault for not better preparing for the deposition. It hurt the case. Another time, the expert had a nervous tick that caused him to sniff very loudly every minute or two. It was extremely distracting on video” says Nasrallah.
Betsey Herd also shares a similar experience, “I have had very seasoned experts get angry and clam up on the stand rather than walk the very fine line of being justifiably angry as opposed to an advocate for the plaintiff.”. These experiences highlight the importance of researching your expert. As well as asking other attorneys who may have worked with your expert before about their experiences.
Be familiar with the governing disclosure procedure
In some instances, an expert’s level of litigation experience can affect how much time initial expert disclosures will take. “If it is a case pending in Federal Court it is helpful to have an expert who has federal court experience because the disclosure process is very detailed and exacting. If the expert has no experience doing such disclosures, then the lawyer 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” says Nasrallah. When it comes to disclosures, the most important thing to determine are the rules that govern expert witness disclosures in the relevant jurisdiction.
Choosing between seasoned experts and new experts is not always a clear-cut decision. There are always certain trade-offs when selecting one expert over the other. The level of litigation experience an expert possesses is always an important consideration. Some experts have more experience in the field, but little experience in the courtroom. Others may have extensive experience in litigation but are perceived as “hired-guns,” which detracts from their credibility. When faced with the choice between these kinds of experts, check this quick guide about what to consider with respect to seasoned versus new expert witnesses.