Beyond the CV – Considerations when choosing an expert witness
Expert witnesses have become an important and critical part of litigation over the years. Finding and retaining great experts can truly make the difference in successfully arguing on behalf of a client. With continual advances in medical science, expert witnesses promise to continue to play an important part in successful litigation, from establishing issues in standards of care to educating a jury to technical aspects of a case.
While the courts have clarified who can provide admissible expert testimony (from Rule 701/702, Daubert, and the Fry standard), choosing the right expert can sometimes boil down to some fundamentals outside legal criteria and CV’s that are equally important to establish the effectiveness of the expert.
As most attorneys know, finding and selecting the right expert can be a difficult, time consuming, resource-intensive task for the attorney, office staff, and paralegals. And having to choose between several qualified experts can add to this important challenge. Understanding that the expert need not only adequately represent your case facts, they should also have the basic experience to present well at depositions or on the witness stand. A CV is important to review qualified expert witnesses but to decide on the right expert; a seasoned litigator needs to move past the CV.
So, what is the most basic information that you should consider before choosing an expert among many qualified candidates?
When it comes to the right expert, a CV full of appointments, degrees, and publications goes to the credibility of the witness but does little to speak to how they will present to a jury. Witnesses with panel or teaching experience can often be better communicators for a jury.
Because in a courtroom setting, it can sometimes be more about how the witness communicates than what the expert knows. No matter how much effort goes into preparing an expert witness, some are naturally better at communicating than others. By speaking with the expert early, pay close attention to their communication skills and ability to navigate complex legal jargon. Are they comfortable talking in a “safe” setting? Consider how the expert will be presenting facts to the jury and how well they will help the jury understand those facts.
Prior Legal Experience –
Another effective bell-weather for great courtroom communication is to review the experience of the expert with legal work. Some attorneys prefer experts to have legal casework experience to minimize the preparation phase of depositions and testimony. Previous experience also lends credibility to decent communication skills. However, always considering how the expert is always trying to be discredited, too much legal casework experience can leave your witness looking like a ”hired gun.”
It is typically recommended you seek experts who are practicing/teaching at least 80% of the time to avoid appearances of the “hired gun.” The right expert must have relevant experience not just in the scientific 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. Years of legal casework experience show true expertise but can sometimes come across to the jury in a negative way. In assessing experience, seek to understand any education the witness has as it pertains to acting as an expert witness.
As with anything else in life, people like to work with people they can work with easily. Particularly under the pressure of a jury trial. Finding a flexible expert, bought in on the facts of the case, and can communicate with a minimal degree of follow up can make the experience of working with the expert smoother and hassle-free. Furthermore, an attorney speaking with the expert before retention is critical.
While not critical, it can be a determining factor. You should also seek out experts who maintain impartiality and objectivity. Expert witnesses who take the time to understand the case and the lawyer’s objectives can make a drastic difference in the courtroom. An expert witness can be crucial in not only speaking to the facts of the case you have called on them for but also prepare you for any weaknesses in the case as well.
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 this information is critical to the decision about whether to retain an expert witness.
Investigate the expert-
Due diligence is necessary to investigate the prospective expert, understanding the other side of the case most certainly will. Ask the expert to provide names of the attorneys involved in the most recent cases in which he testified and the results of the cases. You may consider calling the attorneys who have used the expert in the past (as well as attorneys who have opposed the expert). Also, counsel should search the expert on the internet and in court records. Eliminate the possibility of surprises later.
Hiring an expert for a client’s case is critical to the successful resolution of the litigation. Much like hiring your next employee, take in all the information you can, listen attentively, and ultimately, factor in your best intuition on the expert’s ability to help your case.
In the end, when weighing multiple competing considerations, it may be the expert’s specialty to understand the perspective of the case and meet the expectations of counsel that is the most important differentiating factor of all when a lawyer is choosing between equally qualified experts.
Homestead Medical Experts professionally vets all medical experts before referral. We work with practicing, dependable, communicative experts who take pride in their work and being a part of making it right for those injured through no fault of their own. We make it quick, simple, cost-effective and easy to find, retain and utilize medical expertise through our focus on world-class service. Click HERE to inquire with Homestead to simplify the process. Feel free to call 1(877) 244-3703 or submit the form below to get on you connect quickly with a credible expert.