The prior work experience of a potential expert witness is perhaps one of the most crucial of considerations.
Similar to other assessment processes associated with the selection of an expert, it is necessary to consider prior experience in conjunction with other credentials.
Litigators should examine the relevance between an expert witness’ prior experience and the needs presented by a particular dispute.
It may be helpful to differentiate the type of prior experience in relation to its application. For explanatory purposes, this discussion is set forth to go over three categories of prior experience:
- Professional Background Experience
- Expert Witness Experience
- Miscellaneous/ Other Relevant Experience
I. Professional Background Experience
‘Professional Background experience’ refers to any relevant skills, knowledge, and proficiency gained through the expert’s experience within a specific field, industry, or discipline area, that either contributed to becoming an expert or attaining a level of expertise, but that is unrelated to litigation or other legal support services.
Particularly in cases where the dispute hinges upon compliance issues associated with government regulation and/or industry standard, an expert’s background experience be highly beneficial.
Examples include experience gained in previous employment; involvement in private or government funded grants for research, consulting projects, participation in trade associations.
Aside from reviewing the expert’s curriculum vitae, the litigator should ask the expert witness about his or her specific experience relevant to the issue of the case.
For example, if an attorney is looking for a general contractor for residential construction, the attorney should ask if the expert has dealt with the particular construction defect involved in the case.
Professional background experience should be reflected upon as a starting point in the assessment process.
While an expert may be both qualified and proficient in a particular area, the expert might need sufficient experience in providing legal-support-related services, such that he or she is able meet the needs associated with the role a practitioner intends that expert to occupy.
II. Expert Witness Experience
In assessing expert witness experience, trial lawyers should take various factors into consideration.
While the assessment of prior expert witness or legal-support-related experience is certainly beneficial for consulting experts, this consideration is more important for testifying expert witness.
When an expert is expected to testify or be deposed, practitioners should carefully examine the expert witness’ prior testifying and deposition experience while paying close attention to several key factors.
For example, the length of time that an expert has been providing expert services in the legal field as compared to the number of times the expert has provided testimony during this time.
Viewing prior court opinions, case summaries, and when available, testimony transcripts can often provide trial attorneys with valuable insight regarding an expert’s overall capability, proficiency and effectiveness.
In examining prior testimony, emphasis should be placed on the outcome or results associated with the particular issues that the expert provided testimony on, as opposed to the result of the case as a whole. In other words, be careful to distinguish between inferences gained from prior cases.
This notion is analogous to scenarios where case law may seemingly reveal a negative ruling, but the law on a particular subject still provides meaningful support to another matter relevant to the case at hand.
As an additional method of verification, reviewing the references provided by an expert can assist in ascertaining the value of an expert witness’ services, based upon the opinion of fellow legal professionals.
It can also be helpful to ascertain the precise stage of litigation that the expert was engaged, as well as which stage a prior dispute was resolved.
By understanding the role that an expert played throughout the entire resolution process, practitioners are better equipped to gauge the benefit and value of an expert’s prior services within a particular dispute.
For example, was the expert engaged at initial dispute stages, and then matter was settled prior to trial? On the other hand, was the expert secured late in the dispute process, and perhaps given insufficient information?
III. Miscellaneous/ Other Relevant Experience
The final distinction is a catch-all category for all other experience associated with the expert’s ability to support the case.
Given the vast array of expert witness disciplines, a practical consideration to a prudent practitioner would involve an evaluation of all prior experience—while observing that an attorney’s expertise resides within the legal field and that an expert’s expertise resides in the area(s) needed to support or defend a case.
As such, seemingly inconsequential experience of a particular expert may actual provide a valuable expert witness skillset.
The expert may have experience as an educator, such as a professor, adjunct professor, or instructor.
This experience can be valuable, particularly when the expert is expected to testify, because the expert’s ability to instruct and explain can assist the trier of fact in understanding the issues at hand.
Such experience can also demonstrate the capacity to respond to cross-examination because the expert has experience with responding to inquiries or challenges presented by his or her pupils.
In sum, examining prior experience is an essential component in assessing an expert’s credentials, and given that expert support services are fundamental to many disputed matters, this portion on the assessment process, in particular, should be undertaken in a careful and calculated manner.
By: Alicia McKnight, J.D.