Your case is all too often won or loss based upon expert witness testimony. Selecting the best expert witness is therefore an important role of a litigator. The authors recommend the following techniques:
- See how easy the expert witness is to get on the phone. Be careful of prospective experts with aggressive gatekeepers. Note how long it takes the prospective expert witness to call you back or respond to your inquiry email. You may need to contact the expert quickly further down the road, so availability and accessibility should be tested up front.
- Ask the expert if he would be willing to provide you with his cell phone number. Tell the expert that you will not abuse this. If the prospective expert refuses, accessibility could be a problem down the line.
- Ask the expert for three references from trial attorneys. Call them.
- Ask the expert witness about his experience in litigation support. Ask for his deposition transcript and report from his most recent case. Check out the his work product with your own eyes.
- Google the expert witness. Check out the expert’s online presence including ads in directories and the expert’s own web page. Is there anything online that may be problematic?
- Make inquiry to any professional licensing boards regarding the prospective expert witness’s disciplinary record.
- Take a hard look at the expert witness’s CV. Does it look like it was prepared with care? You don’t want a sloppy expert witness.
- Ask the expert witness to define legal terms that an experienced expert in their field should know. For example, ask your prospective medical malpractice expert to define standard of care. The expert’s answer may be revealing.
- Conduct legal research to see if the expert has even been disqualified or Dauberted out of a past case.
- Ask him if he has been trained in expert witnessing and keeps his skills up through continuing education. Trained experts perform better and take the time and spend the money to improve their skills demonstrate a dedication to this line of work.
James J. Mangraviti, Jr., Esq. and Steven Babitsky, Esq., are frequently called by expert witnesses, their employers, and retaining counsel to train and prepare individual expert witnesses for upcoming testimony. They are former litigators who currently serve as Principals of the expert witness training company SEAK, Inc. (www.testifyingtraining.com).