Articles Posted in Researching Experts

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them.

Plan ahead when considering experts. Some cases may benefit from muliple testifying experts. Start by considering anticipated phases of the case (class certification, liability, damages) when determining the scope of your expert needs. Breadth of consulting support can help you avoid retraining a new support team when new experts are added. For larger litigation, identifying an expert early will lessen the risk of losing the expert’s services to another party in the litigation.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes “For court matters involving real estate, business partnerships, Board of Directors, wrongful terminations, minority shareholder rights, and other related subjects, finding the right expert court witness for the job is not always a simple process.” Bias and conflict of interest should be considered in researching and hiring the best expert witness for your case.

Bias and Conflict of Interest

Before hiring an expert court witness, be sure that he does not have a conflict of interest or any potential reasons to be biased in the case (past or present). Even if the expert is not biased, there may be things in his past that the other side could point out and weaken his influence and evidence in the eyes of the court.

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes:

Choosing a Court Witness for Complex Cases

With complex cases, be sure the court witness you are considering is willing to work closely with your team. Keep him informed of every development in the case, and involve him in important decisions that would benefit from his opinion. But even during a complex case, please do respect his privacy and independence.

In How to Choose the Right Expert Court Witness Chris Robertson gives quick tips on how to narrow your search for the right expert witness. Robertson, of Majon International, an internet marketing company in Los Osos, CA, writes:

For court matters involving real estate, business partnerships, Board of Directors, wrongful terminations, minority shareholder rights, and other related subjects, finding the right expert court witness for the job is not always a simple process. There are many factors to consider. Here are some quick tips to narrow your search for a dependable court witness in these fields.

The Right Qualifications

In Ten Ways to Torpedo Your Expert, Dr. Joni Johnston, President and CEO of Work Relationships, shares strategy on how to avoid “torpedoing” your expert witness.

Strategy #1B: Avoid the expert who is biased in their presentation. Johnston describes two common pitfalls: 1) the use of treating clinicians and 2) the hiring of the one-sided testifier.

A treating clinician relies on self-reported information from his or her patient. That’s very different from someone whose mission is to find corroborating or contradictory evidence in the total breadth of available data. A treating clinician should only be a fact witness, basing his or her testimony solely on a report of what they did, thought, and documented during therapy.

In Ten Ways to Torpedo Your Expert, Dr. Joni Johnston, President and CEO of Work Relationships, gives strategy on how to avoid “torpedoing” your expert witness.

Strategy #1A: Avoid bias. Don’t use a misguided bias in selecting the expert. Dr. Johnson describes one of the most common biases in expert witness selection is “the belief that the most impressiviely credentialed expert is alwsays the best witness. In reality, the ivory tower academic who looks good on paper can windup boring the jury to tears. Or worse, come across as arrogant or unfeeling.” She describes a psychiatry expert witness who infuriated the jury by dissecting a distraught plaintiff. The expert’s unfeeling demeanor resulted in actually harming the defense.

Strategy #1B- 10 to follow.

When hiring an expert witness, make sure to review their prior testimony and opinions. Obtain and review transcripts of the expert’s testimony to evaluate the strengths and weaknesses that may affect testimony in your case. Has the expert given inconsistent testimony? Has the expert previously given verbose or confusing testimony? If so, that expert may not be right for your case.
Good credentials are appreciated by juries. The best expert witness for your case should be active in their field and up on recent developments but other factors are important as well. Demeanor and personal characteristics are also to be considered. Juries lean towards an expert who has no apparent bias. Does the expert give a clear and focused presentation? Is their testimony straight forward and not too long? The bottom line is…it is imperative to carefully evaluate the expert witness for your case.

As an attorney, you are responsible for hiring the right expert witness. Make sure to check your expert’s CV and that you understand it. Ask for references and check out board certifications and licenses. An expert who gives false testimony regarding his credentials could result in perjured testimony and the court could find you responsible.

Evaluate whether academic credentials are important in your case or if a community-based expert witness would be better. In some medical trials, you may need both. The academic researcher could have very specialized knowledge while the practitioner may be better prepared to testify on what is happening in the “real world” medical community. You may expect academic credentials to impress the jury, but it could turn out that they will rate experience and training higher or that a degree is not available in the area of forensic science you are dealing with.

After you have thoroughly researched and hired an expert witness in your case, it is natural to want to get the best testimony possible from your expert. While it may be tempting to try and tell the expert what to say on the stand, the expert witness’s job is to find out the technical truth. Having the education, training, and experience to be an expert in their field probably means they are more knowledgable in their field than you are.

Make sure to provide your expert witness all the information available in your case. This may include medical records, blueprints, forensic evidence, etc. It may happen that you initally don’t like what they have to say regarding the facts in your case but having the expert opionion will help you work out the best legal approach possible. To that end, be forthcoming with the facts. Hiding evidence that you think is damaging to your case can backfire if that evidence comes out in the courtroom.

Make sure to comparison shop when hiring an expert witness. Interview several potential experts and be sure they can tell you how they will proceed with your case. Checking their background has become less of a burden since much of the information can be found online for free.

The experts own web site should be carefully reviewed prior to retaining them. Is there anything embarrassing or contradictory on the site? Does the expert pronounce that he or she “is the leader in the industry” or put forth similar bravado that could affect how the jury perceives the expert? Imagine how the jury would react if the pages of the expert’s web site were displayed as exhibits at trial – because they very well could be.