Expert witnesses play an integral role in every part of today’s civil litigation. While attorneys have become accustomed to using experts, there are literally thousands of suggestions in the literature on the best practices to retain and utilize expert witnesses. This article is a continuation of a discussion that provides some of the most important suggestions for attorneys to maximize their results with experts.
One critical aspect to consider in selecting the right expert concerns familiarity with the expert’s qualifications. While it goes without saying that attorneys should seek the top experts in a particular field, the way to accomplish this may not be nearly so obvious. When searching for the best expert, attorneys should familiarize themselves with the potential candidate’s resume and credentials, to the extent that the attorney knows what each qualification actually means. For example, some witnesses may be members of organizations that are not particularly selective and merely require a membership fee to join. These organizations may not be elite entities, and it is incumbent on lawyers to familiarize themselves with and check into the professional standing of the association itself. To distinguish what types of credentials are truly impressive versus those that are merely resume “fillers,” one test attorneys can apply is: does membership in the organization necessitate individuals’ passing difficult examinations, having long and considerable experience in their field, and/or peer-evaluation or review within the association? If so, lawyers can consider the credential a genuinely reliable one.
Another action that every attorney should insist upon when seeking to retain an expert witness concerns conflicts of interest. Both prospective experts and the firms or companies they are affiliated with should perform comprehensive conflict checks before accepting employment from attorneys, and attorneys should inquire into whether this was done before committing to employ an expert. This conflict check is especially vital in cases where an attorney is dealing with a large business that offers myriad services and types of witnesses. If a conflict check is not performed prior to employing an expert, litigators may face the costly dilemma of having hired an expert that cannot be of use due to a conflict or contrary position. In extreme cases, a conflict could result in the attorney being disqualified from proceeding with a particular case, which means not only the loss of the money and time invested in the expert, but also the loss of revenue that would have been generated had the attorney been able to litigate it fully. If an attorney discovers that the potential expert he or she seeks to hire has not undertaken a conflict check, the lawyer should immediately look for another expert witness. Ensuring that the conflict check takes place will protect litigators and help them to retain an expert who can go the distance and offer the maximum benefits to the case.
Another avenue attorneys should pursue in selecting an expert witness concerns the expert’s prior publications and writings. Attorneys should carefully investigate and make themselves aware of everything the expert has written that is available. The reasons for examining the expert’s writing are twofold. First, this type of examination can help an attorney to further determine the expert’s qualifications. Regularly publishing peer-reviewed articles is often a sign that an expert is highly regarded in a particular field. Depending upon the field of expertise, such routine publishing may also indicate that the scientific community generally accepts the expert’s opinions. The second reason for investigating an expert’s history of writing is to prevent certain problematic situations from arising at a later point in the litigation. If an expert has previous publications that suggest or intimate a potentially conflicting position with the opinion an attorney wishes to advance in a case, opposing counsel will frequently exploit these conflicts to discredit the expert and the theory of a case. This can be especially damaging in front of a jury, as the psychological effect of drawing out a purported contradiction between the expert’s prior writings and current testimony is significant. Because most jurors are not academics or experts themselves, they may not grasp the nuances or the fact that an expert’s theories evolve over time and are not necessarily contradictory. Accordingly, the best-prepared litigators will have examined any publications from a prospective expert and be both aware and ready to address alleged contradictions before their opponent is able to capitalize on them. Moreover, knowing what the expert has written provides attorneys with two options: either the attorney can choose not to retain an expert out of concern that the potential contradictions are too great to be ignored, or the lawyer can employ the expert but be ready to address any intimations of contradictory statements, thereby disarming the opponent of otherwise dangerous ammunition.
Expert witnesses undoubtedly play a crucial role in modern litigation, a trend that is only likely to increase as technology and science continue to evolve. Attorneys who pay attention to the issues addressed in these articles and select and retain their experts accordingly will have gone far in advancing and bolstering their cases to ultimately prevail in litigation.
By: Kat S. Hatziavramidis, Attorney-at-Law