The ABA Section of Litigation recently held its 31st Annual Insurance Coverage Litigation Committee CLE Seminar in Tucson, Arizona. The 30+ content diverse panels provided a range of useful insights relating to complex claims, insurance coverage issues, and other litigation topics. Several panels discussed difficulties in selecting damage, economic, or technical experts, which made me think about my experiences in being retained as an expert. A simple internet search will identify countless articles with exhaustive step-by-step checklists for selecting expert witnesses. But what are three simple practice points you might consider when you need to hire an expert?
Define a Pool of Potential Expert Candidates
Humans are creatures of habit. All too often, the selection process for experts can become an exercise which asks, “Who do we typically use for ____?” This approach may fail to identify beneficial alternatives that will make a difference in your case. Referrals are typically the most direct path to identifying a broader pool of qualified experts to consider. Referral sources can include colleagues, trusted practitioners at other firms, experts themselves, or even opposing counsel on prior matters. As you compile your pool of potential experts, seek information from your referral sources about scope of expertise, favorable qualities, and any limitations regarding each expert. Internet searches, referral services, universities, witness directories, or professional organizations can be used if deemed necessary to supplement your candidate pool. Vetting and differentiating experts from these sources will be significantly more time consuming.
Communicate the Question You Need Your Expert to Answer
Before you hire an expert, make sure they understand the core question(s) you need answered. This seems simplistic, but often counsel over generalizes their need, such as “I need an accountant,” which may not ultimately lead to a match with the precise skill set desired. Counsel should be specific without sharing the overall strategy, such as “I need to create a compilation of environmental response costs which differentiates various site investigation and remediation activities.” When faced with a more detailed description of the need, a good expert will evaluate whether they are the appropriate fit and suggest alternative experts when they are not. During this vetting process, your expert should also be able to identify the typical challenges faced in answering the question posed. An expert who is unable to identify any challenges may not have the required expertise, may not have faced this question previously, or may not recognize the challenges because of overconfidence. If this occurs, ask more questions.
Final Selection—Trust Your Instincts
The final selection of an expert typically requires the evaluation of numerous factors including characteristics such as demeanor, perception of credibility, local considerations, cost considerations, planned approach to the engagement, prior testimony, prior publications, speaking engagements, prior testimony admissibility, academic credentials, professional credentials, precise relevant experience, certifications, and communication skills. Putting all of these factors into an optimization model that weighs the importance of each factor and how each candidate measures in relation to those factors would be daunting and may not lead to an appropriate selection outcome. Consider taking a more streamline approach by documenting at least three differentiating points about why you hired a particular expert over the other options. Keep it simple and, in the end, trust your instincts.
Patrick J. McGrath is a senior managing director at Ankura in Chicago, Illinois.