American Bar Association
General Practice, Solo, and Small Firm Division

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WINTER 1997 ISSUE

Eeny, Meeny, Miny, Mo. With Which Expert Should I Go?

by Jeffrey Allen

Lawyers often require the services of experts in one of two capacities. We retain them either as consultants to assist us in the preparation and presentation of our case, or as expert witnesses to testify in support of our client’s position.

Using an expert as a consultant generally cloaks the expert’s work from discovery as work product, preventing its discovery by the opposing counsel. Once an expert is designated as a witness, however, the expert’s work, conclusions, opinions, and investigation cannot be protected as work product. Opposing counsel may discover virtually all the information provided to, developed by, or relied upon by an expert witness.

We expect both consultants and witnesses to have exceptional knowledge about their field of expertise. Because we expect expert witnesses to testify, we also require that they have good communication skills—and a little charm, wit, and charisma doesn’t hurt either. Consulting experts do not require as highly developed communication skills.

In determining whom to retain as an expert, either as a consultant or a witness, lawyers should take the time to interview several possible candidates before making a decision. The interview process allows the lawyer to evaluate not only the potential expert’s qualifications and credentials but also his or her presentability, believability, and potential appeal to a judge or jury.

Consider carefully whether you wish to retain a "professional witness" as your testifying expert. Most fields boast many such professional witnesses from which to choose. On the plus side, the professional witness is "ring wise," or at least more so than someone without experience as a witness. On the minus side, professional witnesses have likely testified in other cases involving similar issues and may have given testimony unfavorable to your position. An opposing counsel armed with that information may substantially discredit your expert. A professional witness who testifies exclusively (or nearly so) for one side or the other may face extensive cross-examination designed to discredit his or her testimony. A witness who testifies regularly for both plaintiffs and defendants will likely present fewer problems in that regard.

The degree of difficulty in locating a satisfactory expert is directly related to the issue for which you require assistance. The more exotic the issue, the fewer potential candidates. The more common the issue, the more abundant the supply.

 

Jeffrey Allen is the principal in Graves & Allen, a small firm located in Oakland California. He has a general practice with an emphasis in real estate and business transactions and related litigation.

 

 

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