Picking up where our previous blog article left off, we are continuing our examination of how to improve expert selection through a thorough and rigorous expert search process. It goes without saying that expert selection is critical, and our 25 years of experience as the pioneering expert witness search firm has taught us a great deal about this process and how to ensure its success. To elaborate, here are four more tips to improve expert selection:
As soon as the legal team has an understanding of the anticipated timeline including report deadlines, depositions, and trial commencement, check with your desired expert to ensure that they are available and can work within the expected schedule. As we mentioned in part one of this blog, this confirmation of availability can take place during the initial interview with the expert. However, sometimes dates are unknown at the time of the initial interview or change afterwards, and assuming expert availability frequently causes issues that could be avoided with a little planning on both sides.
Assuming that an expert is a great fit and is available and able to dedicate adequate time to the anticipated case, we would advise attorneys to avoid waiting too long before retaining the expert. Great experts are often busy and receive offers for many opportunities that may cause them to become unavailable. Furthermore, it is extremely valuable to have a great expert retained early on to help guide aspects of discovery and consult on various facets of the case.
When it comes to an expert witness, there is nothing more important than the knowledge that they bring to the case. However, it is equally important that you know what they have previously stated, particularly regarding issues that may arise in your case. Hiring an expert to opine that exit doors must always be blue only to discover that two years ago they stated that exit doors could also be orange could cause your case to fold. Pursuing the expert’s body of work, which includes their publications, reports, and testifying experience, will give you a steady understanding of where they previously stood on issues, how they present themselves in formal situations, and peace of mind regarding their qualifications.
Publications: Most detailed CVs contain information on an expert’s publications. These publications might contain highly relevant information as it relates to the subject matter of the case for which they are being retained. Legal teams should request and study these publications, as there might be opinions expressed within the material that conflicts with the attorney’s case.
Reports: If the expert candidate has previously worked as an expert witness, then the legal team will want to obtain all available reports that were prepared by the expert for similar cases. These reports will provide evidence of the expert’s knowledge on a subject, understanding of specific issues, and whether the expert can clearly and compellingly explain their opinions. Additionally, these reports will shed light on previous positions that an expert held, which is imperative for you to know in case they are inconsistent with the opinions expressed in your matter.
Testifying Experience: If a legal team’s expert candidate has previously testified, it is advantageous to know exactly what ensued during that testimony, from transcripts as well as the expert’s memories. This information can either strengthen or weaken the expert’s credibility.
Many great expert witnesses are retained for multiple cases that are similar in nature. Although these seasoned experts are comfortable testifying and compelling when they take the stand, they may also have specific vulnerabilities related to claims of bias. It is not uncommon for opposing counsel to attack an expert on their professional principals, or on a stance that they took in a previous case that might undercut their credibility.
Similarly, many attorneys prefer experts that are not “professional witnesses” – while they are experienced expert witnesses, their fees make up only a small percentage of their total annual income. Once again, this often helps an expert appear unbiased to the court.
Thus, attorneys should always consider claims of bias before retaining an expert. They should contemplate the expert’s experience, performance history, and level of objectivity. When a legal team finds an expert that strikes a harmonious balance between these considerations and supports the client’s position, the team is in a stronger position to succeed.
Running a background check is an essential part of the expert search and retention process. Failing to conduct a thorough investigation of education, memberships, work history, publications, expert witness experience, etc. could result in a situation that damages your case. Your expert will likely have a background check performed by the opposing side, so it is imperative that you do the same.
Through its partner, Expert Witness Profiler, Round Table Group offers comprehensive, cost-effective, attorney-compiled reports that illuminate specific parts of an expert’s background and experience, including:
These reports provide an indispensable tool for attorneys to use before deciding to retain an expert (or before deposing an opposing expert) No matter how you compile this information, it is vital to ensure there are no surprises with respect to your expert during discovery or, more importantly, at trial.
If you would like to discuss the expert selection process that we’ve honed over the last 25 years, and how we can find the right expert witness for your matter, please call us at (202) 908-4500.