5 Suggestions for Selecting the Right Expert Witnesses

Expert witnesses play a vital role in today’s commercial litigation. Experts help counsel, judge and jury understand and digest the parts of a case which are beyond a typical person’s experience… which with the world’s growing specialization is more and more of the case! Because of that, the need for experts has increased and choosing the right experts to help you effectively tell your client’s story is extremely important. Despite that, a diligent expert witness plan is less common than you would think. Both inside and outside counsel often make errors in the expert selection process which then haunt them throughout the case.

Here are five ways to increase the chance that you select the right expert witnesses and give them the best chance to help you.

1. Start the search early.

There are many reasons why you should begin your expert witness search right away. Among them, finding and vetting the right expert takes time. The longer you wait to begin talking to experts, the more likely that the very best experts will have made other commitments, personal or professional. They may have been contacted and retained by the other side or even potentially conflicted out because of confidential information exchanged during these conversations. An expert retained early on can help you evaluate your case and strategic approach before you’ve committed to a dead end. He can also get you up to speed faster and assist with the formulation of document requests and deposition questions, streamlining your efforts and turning up information which may help everybody on your team. To the extent that you need the expert to do research, review materials, and write a report, giving him sufficient time to do his job will improve the quality of the work product he produces for you and reduce the possibility of surprises.

2. Assess the expert’s relevant qualifications and experience

Consider the sort of professional and litigation experience which best serves your case strategy. Do you need a professional with a specific type of real world experience to go in-depth about how things were done in the field or academics used to comparing typical practices and explaining them to novices? Litigators often prefer that their expert have experience being deposed or testifying in court so they have a good sense of what that expert might say on the stand. Juries tend to respond best to experts they believe are unbiased and impartial. Jury members may perceive an expert who always testifies for the same company or for plaintiff or defense as partisan. In some situations, counsel might even prefer someone who has never been an expert witness before, to avoid the appearance of bias. These choices may inform the kinds of experts you want to talk to. Whichever of these choices you make, retaining an expert who is highly regarded in the field with a strong track record of success improves the odds that he will also perform well for you. You should talk to several qualified prospective experts to make sure you’re being thorough. Even a great expert witness won’t be a fit for every case. An initial conversation gives both parties the opportunity to figure out whether your case and the expert are a good fit. A brief summary of the relevant parts of the case and the topics you want the expert to address should allow you to assess this person’s expertise and whether he can explain himself persuasively on the topics in question. A good expert should quickly understand the relevant parts of your case. It’s not reasonable to expect a complete expert opinion after hearing the one minute summary, but his questions and answers should demonstrate his knowledge and the way he thinks about problems in his domain. Does the expert posess the knowledge and experience you’re hoping for? Specifically, does it seem like the expert can do all of the things you need him to do, given your plans? The best testifying experts are not only accomplished in their fields, but have great communications skills and are able to explain the complex concepts and terminology of the case in simple language that normal people on a jury can understand. Can the expert do this? In addition, can he answer tough, adversarial questions? Cross-examination can be a rough experience for newer experts. Your jurisdiction may have limitations on who can serve as an expert witness in its courts. Confirm that the expert has the appropriate licensing and background to serve as an expert witness in your location. For instance, many states require that the expert be licensed in their field in that state, or perhaps an adjacent state. Ask about the expert’s approach and evaluate whether that methodology will satisfy both your needs and the local standards for expert testimony. If you like the expert, make sure to share the case timeline and double check that it lines up with the expert’s calendar.

3. Request reports, transcripts and publications.

If you’re considering an experienced expert witness, ask to see any reports, depositions or trial transcripts. These documents will reveal whether the expert understands important issues, can explain his opinions in an easy to understand and persuasive manner, whether he has taken positions which might be at odds with your case, and how he handled vigorous cross-examination. Search for and read all of the expert’s relevant publications. Both scholarly and mass market publications will help you better evaluate the expert’s writing style, background and positions which support or conflict with your fact pattern. You might even learn something! Beyond official reports and published articles, try to find written work, audio, or video which indicates that the expert might be fit for the job. Are they good at explaining complicated topics to lay audiences? Can you get an idea of how they might handle the stress of cross-examination? Experts who have demonstrated these skills in the past are more likely to show them in the future when it matters to you!

4. See the expert in action.

Once upon a time, seeing an expert witness in action involved expensive travel or complicated bespoke video conferencing solutions. One of the few benefits of COVID is that experts and attorneys have both gotten much more comfortable with Zoom and similar platforms. Take advantage of this and get a good sense of what the expert might look like working for you, easily and inexpensively. Depositions are often online nowadays, so comfort with videoconferencing may be helpful. The potential expert witness you imagine from a CV is only a small part of the expert a judge or jury will experience in the courtroom. Remember, people do judge books partly by their covers. There are no hard and fast rules about expert witness personality traits, but you will probably have some subjective opinions:

• Is the expert dressed and groomed appropriately?
• Does the expert’s demeanor seem appropriate?
• Does he seem knowledgeable and professional without being arrogant?
• Is the expert well-prepared for the interview?
• Does he seem interested and enthusiastic about the case?

After interacting with the expert, does he still seem like the sort of expert who you and your client would like to be associated with?

5. Investigate the expert.

Carefully investigate the prospective expert to minimize surprises when you can’t afford them. You are “hiring” for an important job, so check references. Ask the prospective expert to provide names of the attorneys involved in the most recent cases in which he testified. Call both the attorneys who used the expert and those who deposed or cross-examined him. Find out what these “witnesses” think of the expert. Ask the expert if he has any skeletons in his closet and then verify by searching in court records and on the internet. You’re hiring an expert witness to build credibility for your argument, so you want to make sure his character is unquestionable. If there is a lot at stake, opposing counsel will almost certainly spend time looking for evidence which might disqualify the expert:

• Has his license lapsed or been suspended?
• Does his background prove he’s an experienced academic/professional?
• Are his beliefs and methodologies consistent with best practices or standards in the field?
• Has he ever been involved in a Daubert challenge?
• Does he have a criminal record?

Being able cast the expert’s judgment in a bad light might be enough for the other side:

• Has the expert posted controversial opinions on social media?
• Has he had a messy divorce or DUI?
• Has he made political donations which might not play well with the likely jury or bought a big house which may make him look like a hired gun?
• Are there errors on his CV or website which might make him look unreliable?

Search engines can be a useful tool when evaluating a prospective expert witness. You get a chance to comb through the expert’s interactions with the world and see who he is beyond just his work persona.

Hire an expert witness for any subject matter

Your expert witness can make or break your case, but expert witness due diligence – having done enough research so you can tell your client you’ve found the perfect expert – is hard work. Round Table Group gives you that peace of mind with a thorough, repeatable expert witness referral process. Find the right expert witness with Round Table Group. We’re the Experts on Experts®!

Jeffrey Huron is a member of the Business Litigation Group in law firm Dykema’s Los Angeles office. With over 25 years of experience litigating and arbitrating business, real estate and entertainment disputes, Mr. Huron has tried and won several multimillion dollar, high-stake cases for a wide range of clients.