Every time I go to a doctor, I write down a list of things I’d like to talk about. I’m actually in pretty good health, but I understand that as I get older, there are more things that need to be checked and fewer things that I can take for granted. If I’m going to take time out of my busy schedule to see my doctor, I want to take advantage of his time and get all of my questions answered.
Interviewing a potential expert witness is a lot more complicated then going to the doctor, and often times there’s a lot more hanging in the balance than merely getting a vaccination.
So here’s a checklist of questions to ask that I created, based on my own experiences and the experiences of other litigation attorneys. By no means is it exhaustive, and it must, of necessity, be generic, which means that you’ll need to do a fair amount of customization. But it’s a pretty good place to start.
- What is your expert’s field of expertise?
- Within her field, does she have a “sub-specialty?”
- What is her academic background? (Think schools, honors, degrees, etc.)
- Has she ever received any awards or peer recognition for her work, her research or the like?
- Does she have any relevant books or scholarly peer reviewed journal articles?
- Is her expertise precisely the type of expertise that is involved in your case? Or is it merely pretty close?
- Does she have a list of credentialed peers who would vouch for her integrity and experience?
- What is her professional history? Is it entirely theoretical/academic, or does she have experience in the “real world?”
- Has she ever been asked to be an expert by an attorney before?
- If so, provide the details: was she a consultant? A witness?
- Did her client win or lose? Have her expound in great detail upon her testimonial experiences. Make certain to find out if she felt intimidated or misunderstood by the trier of fact.
- Would any of her prior employers be willing to recommend her?
- How much courtroom experience does she have with respect to the expertise you require?
- What licenses or certifications does she have? Are they current?
- Is she up to date with any continuing education requirements?
- Does she have any experience explaining complex matters to average laymen?
- Has she ever been retained by an attorney and found that her conclusions were inconsistent with her employer’s needs? If so, what happened?
Keep in mind that this is the kind of question that almost certainly will be asked on cross-examination. If she sounds like nothing more than a hired gun or a shill, it won’t help her credibility. Having some disagreements in her past may very well be a good thing.
- Is she aware of any competing theories in her field that may tend to refute her analysis or approach?
- How does she currently make a living? Does she maintain a business/practice? Or is all of her work law-centric?
- Has she ever been sued or reprimanded for anything related to her field of expertise? If so, what happened?
- Has she ever had her license suspended or been placed on a professional probationary period?
- If you were to ask her colleagues their opinions of her, would they know who she is or what she’s accomplished? Would they say flattering things about her?
The list can be endless. But some additional suggestions are in order.
First, as a litigator, I like to see how people respond under pressure and without being thoroughly prepared. So I wouldn’t send her an advance copy of these questions, nor would I have her answer them in writing like a questionnaire. I like to see her eyes, her body language, her confidence, the quality of her voice, her appearance, how quickly she responds to some of the more pointed questions and how composed she is if I challenge her. She will be under fire on the witness stand. The last thing you want is to hire someone and then discover that she wilts under pressure.
The bottom line in this exercise is that there is a very high likelihood that the expert you hire will be pivotal in determining who wins, who loses, and what the damages are. This is not the time to be penny-wise and pound-foolish.
And one final comment. Over time, we all become comfortable with a certain group of experts whom we trust and with whom we have a good working relationship. That’s one of the benefits that come with experience. However, it’s a double-edged sword. We often end up assuming that either the person we’re familiar with is still at the top of her game, or that she’s been so reliable, she’s probably the right person for the job. That’s dangerous. While you don’t have to go through the entire list of questions with someone you are familiar with, you should nevertheless prepare an abbreviated version just to make sure that you’re not taking anything for granted. Who you select as your expert witness could very well be the most important decision you make. Take your time and get it right.
By: Ian Heller, Attorney at Law