Five Ways to Minimize the Chances of Your Expert Witness Being Disqualified
Disqualification of your expert witness can mean summary judgment or a directed verdict and an unfavorable end to your client’s case. Here are some tips for how to prevent your expert witness from being disqualified.
1. Choose the right expert. Your expert witness should be well qualified and should understand what is required under Daubert. Ideally, you will want an expert who has been challenged under Daubert and whose opinions have always been upheld. Do your legwork and find an expert with the right qualifications. Don’t try to shoehorn a round expert into a square hole – the expert’s qualifications should be as on point as possible.
2. Don’t push your expert witness out of his/her true area of expertise. See #1 above. Often times, counsel will choose a very qualified expert – in certain areas. Problems arise, however, when the lawyer asks the expert witness to testify in areas on the periphery of their expertise. Many experts, in an effort to please, will agree to testify outside of their true areas of expertise. This is a recipe for disaster. Don’t put your expert in this position. Hire another expert.
3. Don’t be penny wise and pound foolish. Your expert witness often is indispensable to your case. Don’t risk losing the case by putting your expert on an unrealistically low budget. Furthermore, don’t let cost stop you from hiring an additional expert if needed. That cost is a much better alternative than having your expert witness disqualified. See #2 above.
4. Push your expert on Daubert issues before he is disclosed. Demand that your expert to utilize a methodology that will stand up in court. Ask hard questions about methodology before you even hire your expert. Grill your expert, push him and make sure he has solid answers to all likely Daubert factor issues. Make sure your expert can also give clear explanation (with bullet point reasons) as to why they are qualified to give each opinion they are giving.
5. Make sure your expert is ready to go for their Daubert hearing. Your expert needs to be very well prepared to excel at their Daubert hearing. It’s your job to get them ready. Set aside plenty of time to do so and make sure your expert is prepared to articulately defend their qualifications and methodology. Gently remind your expert that if their opinion is thrown out, this may result in the ending of the expert’s career as an expert.