4. Education
Many professions require significant and continuing education. Hiring an expert with an advanced degree from a reputable institution ensures that their experience is built upon a strong academic foundation. Sports management professor Gil Fried explains, “Being able to combine academia into an industry is so critical, and that’s what oftentimes I see lacking with expert witnesses—that they just don’t have the ability to connect both sides.”
Additionally, experts in dynamic fields who continue to learn through ongoing coursework will have the most up-to-date understanding of any new developments that could impact the case. Meteorology expert Mike Favetta gives an example:
I have in the past destroyed the opposing expert’s report [. . .] it relates to the continuing education aspect because I find [when writing rebuttals] specific issues with [. . .] the experienced, retired/emeritus meteorologists who don’t keep up with continuing education and haven’t been to a weather conference in several years [or] decades. There’s new technology, new information, and new weather warning techniques out there.
5. Conflicts of Interest
Even the appearance of a conflict can be a major setback at trial, whether or not it is an actual conflict. Nutrition science expert Dr. Douglas Kalman notes:
[Both plaintiff and defendant in a case] have reached out to us multiple times. “Can you be an expert for us?” Each time, we say “No,” and they ask, “Why?” I said, “Well, there is a perception of a potential conflict of interest because, as an individual, I was at the wedding of somebody that works for one of these parties. Therefore, there is a perception of conflict.” I would rather not get involved, especially when both sides are asking us. It is not like you are going to get into a bidding war to sign a baseball contract. That is different, but you need to be upfront because the lawyers and law firms you work with do not want to be caught by surprise by anything during the discovery phase.
If there is any doubt, choose a different expert.
6. Availability
Availability can be more complex than it appears at first. With actions extending months or even years, it is crucial that the expert can commit to the time and travel required to see a case through. Some of the most sought-after expert witnesses are not only well-booked, but simultaneously balancing a career with expert work. Make sure that your preferred expert is not overbooked to ensure you receive their focus and thorough work product.
7. Credibility
Experts who adhere to the strict, neutral truth make the best witnesses. Even when an expert’s unembellished opinion does not perfectly comport with trial strategy, it is always better to have absolute confidence that your expert is not telling you what they think you want to hear. Credibility is largely perception; judges, opposing attorneys, and juries will make subconscious decisions based on how truthful your expert appears. Software expert Mike Slinn recalls:
A highly credentialed person who was a bit outside their field, but their credentials were truly impressive; they were just there to act as a mouthpiece for their client [. . .] They were just there parroting whatever they were supposed to do. So, it is easy when you see this happening, to present an alternative independently and to be demonstrably transparent. The other guy’s credibility was blown to pieces, and that is why I think we had a big advantage.
8. Communication
Aim for experts that are organized and prepared. This means they answer the phone, respond promptly to emails, and stay in touch with the trial team throughout the process. Additionally, good communication is proactive; experts who are comfortable asking questions about format, procedure, and strategy as well as bringing up any issues as they occur, are more efficient and effective. Just as you want your expert to pick up the phone for you, responding promptly to them keeps everyone on track.
9. Demeanor
Whether in-person or virtual, first impressions are lasting. Choose an expert who is poised, confident, and dressed appropriately. No matter how distinguished or experienced an expert is, ultimately, the way they present themselves during the initial interview is a strong indicator of how they will appear to the factfinder. Look for good eye contact (or camera technique in remote situations), a pleasant bearing, and minimal stress markers, such as heavy breathing or sweat. Jury consultant Dr. Ellen Leggett describes a good expert witness demeanor:
A combination of healthy ego, but willingness to learn [makes for] an expert the jury sees as having special expertise. Therefore, having the confidence in what they’re saying and the ability to own it with, I say a ‘healthy’ amount of ego—as opposed to egotistic and overly confident—is [what] we want. Enough expertise that jurors will trust, but not an arrogant expertise that turns jurors off.
10. Budget and Payment
Great expert witnesses are not cheap. Make sure that that all costs in the engagement agreement, including retainers and travel reimbursements, are comfortably within the end client’s budget, and that everyone understands hour-count estimates (including regular check-ins to see if expectations need revisiting). Setting financial expectations at the outset and prompt payment ensures that your expert will be focused on the case rather than getting paid.
Summary
Engaging an expert witness is a complex task. First, and most importantly, make sure they can address the issues at hand. Then, ensure they are credible, available and unconflicted before moving forward. With appropriate experience, a commitment to truthfulness, and a collected demeanor, you can be confident in an efficient and effective expert witness engagement.
