A “hired gun” refers to the sort of expert witness who is willing to offer and, if necessary, testify, to whatever expert opinion that advances the hiring attorney’s case theory. If your intention is to avoid inadvertently retaining a hired gun, here are 4 clues you can look for.
1) The Expert Asks What Opinion You’re Looking for
When having preliminary conversations with experts, be wary of those who want to know what opinion you’re looking for. Obviously, the expert will have some idea of what you know, as well as whether you are a prosecutor versus a defense attorney. “While an expert should offer their time, expertise, training, education, and experience, the ultimate opinion after review of the relevant evidence should never be for sale.
When an expert expresses a willingness to offer an opinion consistent with one version of events, without first taking the opportunity to review the relevant data, this should always be of concern. Attorneys might consider saying something like, “Obviously, we are looking to confirm there was a longer lucid interval, so we can broaden the window of opportunity for this injury,” to see how the expert responds. If the expert says, “Well, I have to look at the data first,” this is a good sign. If, instead, the expert responds, “Of course. I can tell you that just based on the little you have told me,” this expert is almost always a “hired gun.” The caveat “almost always” accounts for less experienced experts, who may not realize that experts cannot rely on an attorney to relay 100% of the necessary information verbally.
2) The Expert Only Works for One Side
When an expert only works for one side or the other, this can be an indication the expert is a hired gun. However, this is not always the case. When speaking with an expert, ask if they have ever consulted for the other side. Often times, an expert will consult more frequently for one side than the other, but still have a few consults for attorneys on the other side of the aisle. Sometimes, you may find an expert who has only testified or worked for one side. While this is not a sure indication of a “hired gun,” it should raise suspicion. An attorney would not be out of line to ask the expert directly why they only have experience testifying for one side or the other. In fact, because this may well be an area for cross examination, it can inform a lawyer’s hiring decision to assess how the expert responds to such a question.
3) The Expert Always Agrees
Whether an expert has worked for only one side or has worked for both sides, be wary of the expert who never disappoints. It is difficult to imagine an expert would always and only be contacted and retained by the side that was “right.” Rather, if an expert has been working as a consulting witness for any length of time, the expert should have had the experience of reviewing the data and coming to a less than a favorable conclusion for the attorney who hired them. In order to explore this, an attorney might ask questions such as, “How many times have you been retained to be an expert?” “How many times have you agreed with the position of the side who hired you?” If an expert has been retained a half a dozen times or more and has always agreed with the side that hired them, this should cause concern. Appropriate questions include “What is your procedure if you happen to disagree with the attorney who retains you?” If the answer is, “I never disagree with the attorney who retains me,” this should be cause for grave concern.
4) The Expert Claims to Have “Special Methods”
You wouldn’t hire an expert who claims to have magical powers—that would be silly. However, you might be surprised to learn there are experts who claim to have “special methods” that only they can understand or apply. These experts have been allowed to testify in court in both civil and criminal cases. Lawyers are cautioned, however, that “special methods” which only one expert knows how to apply are rarely if ever, based in actual science.
Science requires reproducibility. This means that people other than the expert you are talking to could apply the same methods and come to the same conclusions or obtain the same results. Science is also verifiable. In other words, someone should be able to look at another person’s work and verify their methods were followed. Both reproducibility and verifiability require methods and procedures that are known. If only one person knows how to perform a given analysis, the method cannot be verified and the results cannot be reproduced.
Finally, science should be tested and peer-reviewed. If, for example, an expert claims to be able to determine who most recently wore a tennis shoe at issue, the expert should be able to establish her methods have been tested with shoes and wearers of those shoes unknown to her, wherein she got “the right answers” when asked to evaluate who wore what shoes. Next, her results should be published in a peer-reviewed journal, meaning a journal wherein other shoe wearing experts examine her work and determine whether her methods are sound. A field of expertise that has a population of one is probably not an actual expertise. Lawyers should inquire about others who work in the same field, studies that have been published, and other work in the field to support the science.
Let me Count the Ways
Certain things, such as an expert promising a certain opinion for the right price, are always a tip-off that the expert is a hired gun. In many cases, however, it is not so clear cut. Lawyers should consider the above expressed areas, as well as carefully review the expert’s resume. In some cases, board certification can lend credence to an expert’s abilities. Participation in meetings in the field, leadership roles in relevant associations, and the like can also enhance an expert’s credibility. Publications, particularly in peer-reviewed journals, may bolster an expert’s credibility and further remove them from the possibility of being a “hired gun.” Often attorneys benefit from speaking with other attorneys who have employed the expert. At the end of the day, attorneys must rely on their evaluation of the expert as a whole.