In litigation, expert witnesses are routinely used and handsomely paid. Choosing the right expert is vital to the success or failure of cases. Experts can and often do make or break a case.
However, both inside and outside counsel’s selection of expert witnesses is often unplanned. In selecting the right expert there are many common mistakes attorneys should strive to avoid. Corporate counsel should follow these 5 unbreakable rules to ensure the right expert witness is selected.
1. Start the search early. There are many reasons why you should begin your search for the right expert witness early in a case. Finding the right expert takes time and it is important to give prospective experts (confidential consultants) enough time to do sufficient analysis to know whether they will be helpful. Retaining experts early also enables assist counsel with formulating document requests and deposition questions, which will provide experts specific information they may need to know, which may strengthen or force them to alter their positions. Unfortunately, counsel all too often select experts after discovery has been completed so there is no opportunity for the expert to gain needed information or to assist counsel with depositions. In addition, sometimes there is an expert who is preeminent in the field or has the right experience for the case. By beginning early, your side may be rewarded by selecting such an expert first.
2. Understand the expert’s relevant qualifications and similar experience. The right expert must have qualities beyond outstanding relevant credentials, which is the starting point. Beyond credentials, the right expert must have relevant experience not just in his field but also experience testifying at depositions and in court in similar cases. Avoid selecting an expert that always testifies for the defense or plaintiff, which jurors may perceive as a negative. In discussing the case, the expert should be able to answer questions in a clear, direct and concise manner, understand both sides’ positions, and be able to explain why the other side’s position is incorrect. Finally, the expert should know the standards required for expert testimony in court and be able to explain how his methodology will satisfy them.
3. Request reports, transcripts and publications. Ask to see (if available) any reports the prospective expert has prepared for similar cases, as well as the expert’s deposition and trial transcripts for them. The reports and transcripts will reveal whether the expert understands the issues, can explain his opinions in an easy to understand and persuasive manner, and whether he has taken any positions at odds with counsel’s case. In addition, counsel should request and read all of the expert’s publications relevant to counsel’s case. Publications may contain positions that conflict with counsel’s case.
4. Investigate the expert. Carefully investigate the prospective expert because the other side will certainly do so. Ask the prospective expert to provide names of the attorneys involved in the most recent cases in which he testified. Actually call the attorneys who used the expert, as well as the attorneys who deposed and cross-examined him. Find out what these attorneys, especially prior opposing counsel think of the expert? In addition, counsel should search the expert on the internet and in court records. Eliminate the possibility of surprises later.
5. Meet the expert in person. The expert’s demeanor and appearance are extremely important, which counsel must observe in person. Is the expert shy, nervous, arrogant? Confidence and professionalism are required. How prepared is the expert for the meeting? Is he energetic and enthusiastic about the case? How well does the expert answer tough questions? How does he present himself? Is he dressed and groomed appropriately? All of this information is critical to the decision whether to retain an expert witness.
It is important that you do everything within your control to select the right experts to help you successfully dispose of the litigation. Looking for and finding the right expert is time intensive and cannot be left to the last minute or delegated to others. By following the foregoing rules, you can avoid the mistakes and harmful effects of selecting the wrong expert and thereby enhance their chances for success.
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.