You’ve got a complicated business and need an expert witness to explain the issues so the jury can understand them. But how do you pick the right expert?
Do you go with the one who has the most impressive credentials?
The one with the most experience as an expert witness?
The one who spent the longest working in your industry?
There is no simple way to answer this question. Picking the right expert can require significant research and legwork. The right expert isn’t just someone with the right credentials. She needs to be able to do all the following things well:
- Synthesize the key facts and issues in your case;
- Develop and support clear and convincing opinions grounded in the facts and her expertise;
- Capably defend those opinions in deposition and on cross-examination; and
- Make a personal connection with the jurors that will encourage them to rely on her analysis to understand the case.
The last requirement is often given less attention than it should receive, but if your expert can’t connect with the jurors, she won’t add anything to your case. Instead of making the issues simpler for the jury to understand, an expert who comes across as unrelatable, uninteresting, overly biased, or arrogant could alienate the jurors instead.
What Background Does the Expert Need?
Some people’s resumes — complete with impressive degrees, numerous publications, leadership positions in important societies, and many past testifying engagements – just scream “expert witness.” But these aren’t always the only, or even the best choices, for your case. Expertise isn’t only developed in the ivory tower – many extremely capable experts built their specialized knowledge through real-world experience. While not as obvious as experts with the strongest academic pedigrees, candidates who developed their expertise through practical experience often have a great deal of skill in communicating their knowledge to laypeople. This ability to break down complex and often abstract concepts into concrete examples is invaluable in a jury trial. These experts also often come across as “more relatable” and, as a result, more trustworthy to the jurors.
Too Much Expert Experience?
But no matter whether you pick the expert with the fancy degrees or the one who spent decades in the industry, you want an expert who has testified a lot, right? Maybe even one who works as an expert witness for a living?
Professional expert witnesses come with the potential risk of looking like a “hired gun,” or someone who will give whatever opinions their client wants them to. This is particularly a concern if the expert only testifies for plaintiffs or only testifies for defendants. A professional expert witness who only testifies for one side is easy for your adversary to paint as someone whose livelihood depends on his willingness to agree with his clients. Given that experts are supposed to exercise their independent and impartial judgment, your opponent will be looking for ways to paint your expert as someone who seems like he can be swayed to give more favorable testimony in order to keep clients happy and his calendar of engagements full. This can dramatically undercut your expert’s credibility with the jury.
Experts who split their engagements between plaintiffs and defendants have an easier time rebutting a claim that they have a built-in bias for your side, but your lawyer needs to make sure the expert is prepared to deal with this issue if the other side raises it. The best scenario for neutralizing the argument that your professional expert witness is inherently biased is if you can retain an expert who usually testifies for the other side in your type of case, but found your case so compelling they switched sides.
What Has the Expert Said Before?
Another area where your lawyers need to do their research before recommending an expert is to determine what your expert has said before on the subject in their academic writings and prior testimony. If your expert has previously given an opinion that is contradictory to what you expect her to say in your case, those past statements will dramatically undercut her credibility and could put her in that dreaded “hired gun” category. This doesn’t mean that your expert can’t have testified for plaintiffs before in the past if you’re hiring her for a defense engagement. But it does mean that she needs to be able to show she applies consistent principles to her work, and that her opinions are derived from faithfully applying these principles to the facts.
Your lawyers also need to make sure your potential expert has not been disqualified from testifying in previous cases. This might happen if a court previously determined that your expert was not applying sound principles or using scientifically accepted methods to reach her opinions in that case. Past disqualifications will undermine your expert’s standing as someone the trier of fact should rely on in understanding the case.
The Personal Connection
Once your lawyers have found someone who seems great on paper, the final step is gauging how the expert will present to the jury. Personal interaction is the only way to accomplish this. Great trial lawyers can tell which witnesses will connect with a jury and which ones won’t. And they know that someone who seems like they should be a terrific witness in theory will fall flat if they can’t make a personal connection with the jurors. Given the often technical or detail-oriented nature of experts’ testimony, it is critical that they can hold a jury’s attention. Outstanding expert witnesses are engaging, personable, and interesting. You want the jurors to be reminded of their favorite high school teacher when they think of your expert – someone passionate about the subject, who really wants others to be able to appreciate and understand it.
Great trial lawyers know how to find that expert who is smart, experienced, fair, and likable. They then work with the expert to prepare the best presentation of your case. It’s a skill litigators can only develop with experience. We bring that skill and experience into our preparation for every one of our cases.