Selecting an Expert Witness: Pitfalls and Best Practices

    Finding Expert Witnesses

    The more complex your case, the more likely it is that you will need one or more expert witnesses to explain its 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:

    1. The facts themselves are not easily comprehended with ordinary or “common sense.”
    2. The facts require the trier of fact to reach a conclusion that is not easy to understand or to reach without specialized knowledge.
    3. The case involves facts requiring a knowledge or background the judge does not possess.
    4. Some types of cases also require attorneys to retain an expert witness in specific jurisdictions

    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.

    Are you looking for an expert witness? Click here to connect with a highly credentialed expert in any discipline.

    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 to establish the extent of harm suffered and the likely future costs from that harm.

    Choosing the Correct Expert for the Case

    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 backgrounds:

    1. 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.
    2. 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.
    3. “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 but may be negatively received by the court due to their cessation of “hands on” work in their field.

    To compile a “long list” of potential experts, seeking out local university departments, consulting firms, and organizations that provide access to experts can produce results. Attorneys might also consider tapping into their own professional networks and those of their clients. Trusted colleagues can either serve as experts or can provide referrals to qualified experts. Searching CVs, conference presentations, and citations using a tool like Google Scholar can also help legal teams pinpoint appropriate candidates. Of course, all of these approaches require a significant amount of leg work on the part of the attorney, and there is no guarantee that expert candidates will be the right fit for the case.

    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:

    1. 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.
    2. 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).
    3. 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.
    4. 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.

    At The Expert Institute, this process is handled by a team of skilled researchers with access to the latest tools and technology to ensure consistent, timely results.

    With careful consideration and the help of experienced consultants where needed, finding an expert can be among the most productive and efficient case preparation tasks. However, attorneys should also be conscious of the time, resources, and thought that needs to be devoted to an effective expert search. Allowing an expert witness consulting firm like The Expert Institute to handle the search and diligence processes for you is typically a worthwhile investment.