Expert witnesses can be the key to successfully litigating a dispute. Experts are a valuable resource for attorneys and society has high expectations for them in terms of what they can do. Here are three myths about hiring an expert witness, and the truth behind those myths:
Myth #1: Hiring An Expert Witness Will Help You Win the Case
Hiring an expert can be an important part of winning any case, but the expert, alone will not win the case for you. An expert witness is not an advocate for a party. Instead, they are there to help the finder of fact understand the concepts in the case; usually a complicated, technical, or scientific concept. Their knowledge and unbiased insight are a powerful tool, but how the attorney uses an expert witness will be a factor in the outcome of the case.
For example, a civil defense attorney might advise his client to settle the case after consulting with several expert witnesses because the experts find that the defendant’s actions were negligent given the circumstances. An expert witness can give insights to the attorney on how to strategize the argument to minimize the settlement amount for his client.
On the other hand, an expert’s opinion might actually keep a case from happening at all. For example, a plaintiff’s attorney might forgo a case after the plaintiff’s expert reviews the merit of the case and determines that the evidence in support of the claim is weak.
Myth #2: The More Expert Witnesses You Hire, the Better
It is easy to get caught up in the notion that more is better. Although having many experts can intimidate the opposing party, and potentially deprive them of available experts to testify for their side, it does not always work as a strategy. Why?
First, the opposing counsel can seek to depose each and every expert that an attorney designates. It might give the opposing party the chance to poke holes in a litigator’s strategy by finding out if the experts have conflicting opinions.
The other problem with multiple experts is the cost. Expert witnesses demand a high fee because they are the authorities in their field. An attorney can incur enormous fees if they do not communicate with the experts on the scope of the work in details. The party who retained the experts should prep the experts for depositions, which can be time consuming and costly. One right expert is better than several less credible experts with conflicting opinions.
Myth #3: Retaining A More Experienced Expert Witness is Better
It’s easy to make an assumption that someone with gray hairs on their head knows more about their area of expertise than their younger counterpart. While the years of experience is a factor that an attorney should consider when selecting an expert witness, it is not the only attribute, and it is not the most important factor. There are several more important factors, including the expert’s intellectual integrity, thoroughness, and the ability to communicate to the jury. An attorney should look for a qualified expert who does his or her due diligence in expert witness work, has a well thought-out honest opinion that can withstand attacks, and the ability teach the jury highly technical issues in layman’s terms.
When it comes to hiring an expert witness, it’s quality over quantity in terms of the number of experts and years of experience. How the attorney uses an expert witness is the real key to success.
By Chris Eri, J.D.