Expert witnesses possess specialized knowledge and typically fall into two categories: subject matter experts or economic experts. Expert witnesses can help make or break a case. In some ways, expert witnesses are easier to prepare than fact witnesses, may have experience testifying, and can hold up better under pressure. On the other hand, attorneys need to have faith that their experts know what they are talking about, especially when dealing with areas outside of their own knowledge base.
When I was a young professional, I once asked a seasoned litigator what makes a good expert witness. The story he went on to tell me just about sums it up. The lawyer told me about a time when he contacted a potential expert who was referred to him by his colleague. In his initial phone call with the expert, the lawyer laid out the facts of the case and asked, “How would you approach this?” The expert replied, “Tom, you don’t want to hear what I have to say on this one.” After which the expert promptly hung up the phone. The lawyer went on to work with that expert several times in the ensuing years, on many successful engagements. The point is, on that first occasion, the expert was candid about whether he could help the attorney’s case.
Apart from candor, you should consider the following key factors when retaining an expert witness.
An expert’s qualifications are undoubtedly important; they must have subject matter expertise, whether that be in a particular technology, industry, or damage calculations. This means the expert will be able to arrive at well-reasoned opinions, and being well-qualified will help them withstand difficult questioning at deposition and trial, particularly during cross-examination. Good experts, retained early in the case, can also help with case strategy, discovery requests, and preparation for examination of opposing experts. However, a specific number of years of experience or credentials may not make a good expert absent other qualities. This is important to keep in mind when searching for the “needle in a haystack” expert (i.e., someone who has worked as an executive in a particular industry and is being retained for his or her experience in calculating lost profits). In many instances, specific industry experience may not be needed. It is also important to remember that although a professional may not have extensive testimonial experience, they may have subject matter expertise and be just as good as an expert who has testified 100 times. Talking to potential experts and getting a sense of the “whole package” can assuage any uneasiness from lack of experience in a particular area.
Perhaps the most important quality in an expert is credibility. There are various opinions about the qualities that convey credibility, which simply means the ability to be trusted. Credibility can come down to a feeling. However, when credibility is lost, it is apparent to everyone.
Experts comprise a large portion of a litigation budget and attorneys need to have a certain level of faith when retaining one. One of the worst things that can happen is for an expert to lose credibility in front of the finder of fact. A credible expert will acknowledge weaknesses in their analysis and will admit his or her mistakes, even during testimony. The most credible experts are those who are honest and straightforward and advocate for their own opinions. It is not an expert’s role to be an advocate for their clients or for arguments presented by counsel.
The best experts can convey complex ideas to judges and jurors alike. An expert’s extensive credentials mean little if they cannot clearly explain their opinions to lay people. Consider two financial experts explaining the mechanics of a Ponzi scheme or technology experts explaining the benefits of a patented technology for a new DNA sequencing method. If an expert is unable to explain complex concepts, the finder of fact will be lost and likely “side” with the expert that can clearly explain their opinions. In other words, retaining the stereotypical gray-haired Ph.D. as an expert, while highly qualified, can backfire. If they cannot explain complex concepts in an easily comprehensible way, they may come off as intimidating to jurors. Jurors want to feel that experts are “one of them.”
Good experts share a simple personality trait: likeability. Characteristics of likeability include eye contact, unassuming demeanor, and casual but professional speech. Likeable experts show appropriate levels of respect to the judge, jurors, and counsel on both sides. Always schedule a phone conversation or video conference before retaining your expert. It is difficult to imitate a friendly personality, making it extremely important to get to know your expert before retaining the individual.
Keeping in mind the foregoing considerations will help in your retention of an effective expert witness.
