This is the third part of a four-part series on challenges we face as trial lawyers working with expert witnesses. The blog series started with measuring the impact of expert witness testimony, then covered eliciting persuasive expert witness testimony. Here is the installment on checking for conflicts with an expert.
There are several important factors in choosing an expert witness, not the least of which is ensuring that the expert does not have a conflict of interest. It is important to identify the communities in which the prospective expert witness is an involved member. For example, does the expert witness attend the same work-related conferences as the opposing party or the opposing expert witness? The more national in stature the expert witness, the smaller the group of peers functioning at that level and the higher the likelihood the prospective expert witness will at least be aware of the other.
It is not a bad idea to begin your review of the CV of the prospective expert witness by charting a map. Where does the expert live? Work? What were the prior places of employment? You can then start your communication with the prospective expert witness with a rigorous elimination of any potential conflict before you start to share any information about the case.
Ensuring that the expert doesn’t have a conflict of interest with the opposing party, opposing counsel, or opposing expert(s) will ensure that you don’t hear the words “Now I remember…” from the expert witness. Whether a national figure or a local personality, the expert must be able to establish confidence in the eyes of the jurors.
An added dimension to this consideration extends also into the client population of the prospective expert witness. Again, the more credentialed the expert, the more likely the expert witness will have either worked with or against other high profile law firms in an ever-shrinking context. Don’t overlook the opportunity to learn as much as possible about not only the other cases in which the expert witness has been involved, but also the list of law firms that retained the expert.
By: Paloma A. Capanna, Attorney at Law and Policy Analyst