Universal traits wanted in an expert witness are easy to list, but sometimes hard to evaluate. Attorney Matthew Morr rattles the usual requests off quickly:
When thinking about getting an expert I look at three things. First, are they truly an expert in this area? The second is, are they going to be persuasive? The third is credibility. You want someone great on paper and that is going to put together a report that is a persuasive, well-written document they can defend on the stand, whether it is in a deposition or a trial. When I say credibility, I would like to think that all my cases are perfect, but they all have hitches or holes with which we must deal. You want an expert that can credibly cope with those issues and still push our themes forward.
The first is usually the easiest to tell from perusing the CV and some minor legwork. The second you can get a bit of a feel from the initial interview. The third, though, is hard to tell in advance, but key. As attorney Teena-Ann Sankoorikal notes:
… Someone who has the sort of strength to tell me, ‘No, I disagree.’ There are views that I as a non-expert will have about the technology or the size, but it is important to me to hear, ‘Well, you don’t quite have it right’ or ‘No, I cannot say that’ from the expert. I need to work with someone that I am confident is going to push back when I may have it wrong. I am not trying to get it wrong. The last thing I want to do is get up in front of the jury or anyone else and get it wrong and put our client or me in the hot spot. It is important to me that the expert is someone who has the fortitude, the confidence and is not shy about speaking up when it is important to do so.
Even if you find someone with all three of the above characteristics who is available, you also need someone who is unflappable on trial. Sometimes attorneys find these experts on the opposing side. Robert Sherwood remembers:
I recall that I was testifying for Yahoo!, and the other attorney was hard on me. He got personal, but I did not take it personally because I knew that was his job. […] Experts should realize that no matter how challenging the question is, how personal the questioning gets, such as ‘Doesn’t the client pay you?’ or ‘Aren’t you paid for your opinion?’ Never take those things personally. What happens is many of the lawyers recognize what they are doing. In this case, when the trial was over, the lawyer came out and apologized, he said, ‘I am sorry.’ I said, ‘Yeah, I understand. That is your job.’ Well, guess what? That same law firm hired me for other cases about three years later.
Many attorneys make the mistake of thinking the initial interview is entirely one-sided. Experts, though, are vetting as well. Sometimes they are vetting their role in your story. Richard Laton notes:
The first thing I do is introduce myself, and then ask them, ‘OK, what is the case about?’ What is your side of it? What are you thinking and where do you see you need help? Then, I come, sit back, and listen. As they are listening, you can start to go, ‘Okay, I can help them.’ Or, ‘I can take part in that. I am not going to be able to do this other part, but it is okay. I have friends and other people who can do this other part.’ It is a small industry, so one day, the guy is on your side and the next day they are against you. I look at it as if I want to be able to help them, and if I cannot help them or if they have an opinion that I cannot back up even on the front side, I walk away. It is just not worth it to me and that has happened. If I think I can help them and they seem to have a reasonable approach to things, then I will just keep asking questions and try diving a little deeper until I get comfortable with what they are trying to ask for and what they are thinking about. I cannot give an opinion because you have not done any background work on it, but at least I can understand where they are. Particularly at this phase where I have been doing this for the last 15 years, pretty much full-time. I have a better idea of where they may be headed because I have been down these various legal cases both on the defense and plaintiff side.
Good experts are also self-selecting. The interview is an opportunity for them as well as you to find out if they are a good fit. As Kevin Quinley puts it:
We want to be people pleasers. We want the new assignment. We want the case assignment. We want to get traction on our practices, but accepting assignments with incredibly short-fused deadlines can degrade the quality of the work product. If the subject matter is beyond or at the periphery of our knowledge expertise it is tempting to say yes when you ought to say no.
In addition to vetting the case, experts are vetting the attorney. Jolie Brahms notes some of what she looks for in someone she expects to work closely with:
Sometimes people see things simplistically, but that first phone call is key. In that phone call, I get a sense of what that attorney’s motivations are, what they would be like to work with, and whether we can work together. Now, I would like to think I can work with most people, but it is important to understand that their questions make sense. There are attorneys that call with questions that cannot mix in a legal sense. They want an answer which is not adherent to what psychologists can do for them. So yes, those initial conversations save a great deal of pain and a great deal of time. It is important that I can come back to you and say this person needs XY or Z and not me. Here are some of the issues.
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