How to Select an Expert Witness

In today’s litigation practice, experts are frequently called upon to give their opinions. Even though experts are paid witnesses, their testimony is invaluable in educating judges and juries. The right or wrong expert is often the difference between winning and losing.

Unfortunately, however, parties and their attorneys often start their search for an expert too late and then settle on the first one who readily agrees with their position and is available on short notice. If this is how you or your attorney go about selecting experts, you are needlessly jeopardizing your chances of success.

The following suggestions for selecting an expert witness come from my years of experience as a trial lawyer in locating, preparing and examining expert witnesses:

  • Start Your Search Early. By talking to experts, you may learn of problems with your case. Getting bad news early can save you a lot of time, money and aggravation. Furthermore, if you retain an expert before discovery is complete, he can make sure that you are requesting the right documents and asking the right deposition questions. You also want to win the race to retain the best expert for your case. Most importantly, you want to give your expert sufficient time to prepare.

  • Credentials and Experience Are Extremely Important. The expert you select must have impeccable credentials (third world medical degrees will not do) and experience with similar cases. If your expert lacks either, your opponent will exploit your expert’s questionable credentials or lack of experience with the jury.

  • Request Reports and Publications. Ask to see some of the reports that the prospective expert has prepared for similar cases. The reports will reveal whether the expert understands the issues and can explain his opinions in a clear and concise manner. Prior publications represent a minefield for prior inconsistent opinions. Therefore, make sure that you obtain and review all the prospective expert’s prior publications before selecting him.

  • Give The Prospective Expert All the Information (Good and Bad). Tell the prospective expert all the information, especially the information that is unfavorable to your position. Withholding unfavorable information from your expert will only lead to disaster. When the unfavorable information comes out (and it will), your expert will have to choose between changing his opinion or defending the unreasonable. If your expert is not credible, then his testimony will not be useful to you.

  • Meet In Person. Meet with the prospective expert in person. The expert’s appearance and demeanor are important. Is the expert prepared for the meeting? Is he comfortable stating his opinions? Can he explain them in a way that a jury will understand? How well does he respond to difficult questions that your opponent is likely to ask him?

  • Check References and Call Opposing Counsel. Ask the prospective expert to give you the names of the attorneys involved in the most recent cases in which he testified. Call the attorneys who used the expert as well as the attorneys who deposed and cross-examined him. Find out what the attorneys on both sides thought of the expert.

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