Expert witnesses play an increasingly common and crucial role in commercial and business litigation today. It is not enough, however, simply to find and retain the best available expert for your client's case (although that can be a challenge in itself). You also need to maximize the benefit you receive from the expert's special knowledge and skills and make the most of the fee you or your client will pay the expert. Effective use of an expert witness at trial is an important topic, but one not covered by this article. This article focuses on effective use of an expert witness to best position your case pretrial.
Selecting an Expert
One of the most critical decisions to be made in litigation is what expert or experts to retain to assist in evaluating and presenting the case to the jury. You can use many different sources to identify a good pool of potential experts—such as prior experience, colleagues, scholarly publications, expert databases, and expert referral services—but the real challenge comes in sorting through that pool to find just the right one.
Credentials. Depending on the subject, credentials can be important to survive a Daubert challenge to the reliability of the expert's opinion and to convince the fact finder of his or her expertise. When considering an expert's credentials, do not forget the importance of practical experience. For example, even a law professor from a prestigious university can be damaged on cross-examination if she is forced to admit that she has never actually practiced law. Moreover, it is important to match the qualifications of your expert with the specific area of testimony about which the expert will be expected to opine. As a part of the trial courts' gatekeeping function, they must ensure that experts have experience in the particular area of expertise at issue. So you should find as close a match as possible between the subject of necessary testimony and the witness's precise area of expertise.
Prior testifying experience. Depending on the type of testimony you are looking for, you may or may not be able to locate qualified experts who also have significant testifying experience. There are pros and cons to retaining an expert with significant testifying experience, including the following:
The expert will be more comfortable in the courtroom and before the jury and less likely to be rattled by opposing counsel's objections and cross-examination.
The expert's testimony may have been admitted in a prior case, which might provide added credibility.
The expert will be used to working with attorneys in a litigation context and will understand the discovery rules and litigation process.
If the expert has testified more frequently for plaintiffs than for defendants, or vice versa, opposing counsel may succeed in characterizing the expert as a "hired gun" whose testimony is biased.
An expert whose primary occupation is a testifying expert may lack "real-world experience" that could make his or her testimony more credible.
The jury may be confused by seemingly inconsistent testimony from other cases.
The expert may think the expert is so sophisticated regarding litigation that he or she does not give deference to your advice and preferred protocols.
Prior publications and speeches. Prior publications and speeches can help establish the qualifications and credibility of your expert. Like prior testimony, however, they can be mined for arguably inconsistent statements that your expert will be forced to explain. Also, if you are representing a high-profile client or trying a case that has received media attention, be certain to check whether your expert candidate has made any public comments about your client or your case.
Licensed to practice in the forum state. If you are searching for an expert in a field that requires a state license (such as law, engineering, or medicine), you should consider whether the expert is licensed to practice in the forum state. Non-licensure in the state is a potential means of damaging the expert's credibility on cross-examination.
Objectivity. It is very important that your expert be objective and appear so in front of the jury. You should be somewhat wary if your potential expert jumps too quickly to express an opinion that would benefit your side. You want an expert who will express a well-reasoned opinion. If the expert is starting the process with a bias, he or she is less likely to interpret the evidence logically—potentially leaving his or her analysis full of holes to be exploited by opposing counsel. In addition, an expert who will go too far in supporting your position may lose credibility.
Jury appeal. The final factor when weighing the candidates is jury appeal. Other than admissibility of the opinion, jury appeal is arguably the most important factor. Jurors will often not understand much of the substance of an expert's testimony, particularly in highly technical or complicated areas, so they will make their judgments largely on whether they find the expert to be likeable and credible. Assuming you can survive a motion to strike, then, a less-qualified but likeable expert may be a better choice than an ultra-qualified but aloof and arrogant expert.
Working with Your Expert Pretrial
Decide what and how much information to provide to your expert. Once an expert is retained, but before you send the expert the first piece of paper or sit down to go over the case, you must think about what information you want to share. Pursuant to Federal Rule of Evidence 703, an expert's opinion should be based on facts or data perceived by or made known to the expert. The expert may rely on any facts or data that are reasonably relied on by experts in his or her particular field in forming opinions, even if the facts or data are not admissible in evidence. To ensure the most reliable opinion with the least risk of cross-examination, you would provide the expert with as much relevant information as possible.
However, you must also keep in mind that expert witnesses' hourly rates can rival or even exceed those of the lawyer, and costs can easily get out of control, especially if you provide the expert with large amounts of material to review. So it is important to choose wisely in deciding how much information to provide. You should provide the expert with enough information to be able to form a well-reasoned opinion and to defend that opinion on cross-examination, but not so much as to bog the expert down. Also remember that any information provided to the expert that the expert considered in forming his or her opinions must be disclosed to the other side, which will destroy any privilege that might otherwise exist for such information. See Federal Rule of Civil Procedure 26(a)(2)(B), 26(b)(4)(C).
Work with your expert to write a report. Under the Federal Rules, a retained testifying expert must submit a written report (Rule 26(a)(2)(B)), although under some states' rules, a written expert report is optional. If you find yourself in a situation where reports are optional, you must decide whether to have your expert prepare a written report. The following are some factors to consider:
A written report gives the other side a road map to your expert's opinions and may provide fertile ground for cross-examination.
Preparing a written report helps your expert think through and distill his or her opinions, which may result in a better and more efficient deposition.
A written report may help to keep your expert's deposition "on topic," and it also ensures that all of the expert's relevant opinions are adequately disclosed.
If you elect to have your expert prepare a written report, be sure to discuss what type of report you are expecting. Depending on the nature of the case, the expert report could be a one-page synopsis or a lengthy piece. It should include a concise statement of the expert's findings, set out the facts and data that form the basis of the expert's conclusions, and fully set out the process and methodology the expert used to reach his or her conclusions.
Prepare for the deposition of your expert. The deposition of your client's testifying expert can be a critical point in the case. Depending on the performance of the expert, your client's position may be significantly strengthened or weakened. Moreover, some courts might allow the expert's deposition testimony to be used against your client, whether you decide to call the expert at trial or not. Compare Collins v. Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980) (allowing an expert's deposition testimony to be used against the bus manufacturer that hired him as an adverse party admission), with Kirk v. Raymark Indus., Inc., 61 F.3d 147, 163–64 (3d Cir. 1995) (holding that an expert's testimony cannot be used as an admission against the party who hired him without the court first finding the expert is an agent of the party—i.e., that he was authorized to speak on behalf of the party and that he agreed to be subject to the party's control).
To be prepared for the substantive aspect of his or her deposition, your expert should be well-versed regarding all the relevant facts of the case and knowledgeable regarding all aspects of his or her conclusions. Although you likely will have communicated often with the expert regarding the facts and the expert's conclusions, meet again before the deposition. Be sure to discuss any sticking points with the expert, and make sure the expert can address any potential weak spots in your client's case both comfortably and credibly. Also make sure your expert has—and can articulate—an adequate and reliable basis for his or her opinion. No matter how educated and otherwise qualified your witness is, he or she must provide a reasoned basis for his her opinions. See, e.g., Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) ("[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.")
In addition to the substance of the expert's testimony, you should prepare the expert for the procedural aspects of the deposition and provide pointers on how to be a strong witness. Review the deposition's format and discuss generalities such as where each person will sit and how the questions will be asked. In addition, the following tips may improve the expert's performance:
Remind the expert to always tell the truth; the expert will be testifying under oath, and his or her credibility is key to persuading the jury.
Encourage the expert to be well rested and alert the day of the deposition. Remind the expert to ask for breaks if needed so that he or she will remain alert throughout the entire deposition.
Remind the expert to pay close attention to every part of a question. Opposing counsel may try to trick the expert by beginning a question with an introductory clause that assumes a fact is true, even if the expert does not know the fact to be true. The expert should not agree with the body of a question if he or she does not understand and agree with every part.
If the expert believes a question is inconsistent with the facts, he or she should make this point clearly on the record. For example, if opposing counsel asks a question regarding a hypothetical situation, the expert should consider whether his or her answer assumes facts that were not present in the hypothetical.
Remind the expert to limit his or her opinions to his or her designated area of expertise. The expert should resist the temptation to express opinions on other topics. This is especially important in cases in which multiple experts are retained and each is asked to form an opinion in a particular area. The opinions of the various experts must hold together as one consistent theory and not fundamentally contradict one another.
Advise the expert to answer questions whenever possible using layman's terms rather than technical jargon—and point out examples as you prepare. While opposing counsel may be familiar with relevant technical terms, the judge and jury who ultimately will resolve the issues likely will not be.
Advise the expert to be aware of opposing counsel's attempts to characterize or re-characterize the expert's answers. The expert should use care in answering questions that begin with phrases such as "So, you are telling me that . . ." or "Would it be fair to say . . ."
Opposing counsel may attempt to ask the expert to agree that a particular work is an authoritative source. Advise the expert not to agree to that characterization unless he or she has had a chance to review the work recently.
Use your expert to help you prepare to depose the other side's expert. In preparing to depose the other side's expert, your own expert can be a valuable resource. Be sure to consult your expert regarding weaknesses in the other expert's experience, key missing information, or holes in the expert's analysis. In addition, your expert should be able to provide you with a simple framework for asking questions of the adverse expert. Ask your expert to identify the key points of disagreement with the opposing expert and then formulate questions to highlight these disagreements. You can also ask your expert about the other side's reputation in the industry. If the other side has truly hired a recognized expert in the field, you might not want to waste time in the deposition going through the expert's résumé. On the other hand, if your expert believes some of the other side's qualifications are sketchy, it might be worth taking some time to explore this issue.
Making the most effective use of an expert witness is a skill that typically is not taught in law schools, and lawyers can work their entire careers to perfect it. But the tips in this article should give you a good head start in becoming an expert on experts.
Keywords: litigation, commercial, business, Daubert, credentials, expert report, Federal Rule of Civil Procedure 26, Federal Rule of Evidence 703
Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).