Often, attorneys will locate more expert witnesses than they need in a particular matter. They will then be in a position where they can choose from amongst these experts the one who they would like to retain. In making this selection, attorneys evaluate many factors. These include the following points.
Does the expert answer his phone and return phone calls? Is the expert willing to testify? Does his schedule allow his commitment to the case? Has he already been hired by another party in the case?
Reputation as an effective expert
Does the witness have a reputation as an effective witness? That is, is this a witness who can persuade the jury and help the attorney win? This information may only be available if the attorney is able to get a colleague’s recommendation on a particular expert or if the attorney has herself used the expert in the past.
History of past cases
Was the expert witness associated with favorable verdicts/settlements in the past? This can be determined from jury verdict reports and may be relevant to one’s ability to persuade and communicate effectively.
Are the expert’s past reports well written? Do they reflect a careful and thorough investigation and lack of bias?
Are there any missing credentials on the expert witness CV? Are there any time gaps, mistakes, or holes in the CV? Does the experts CV look polished or sloppy? Is there damaging superfluous information on the CV such as a win/loss record of the expert’s cases?
Has the expert published? Such experts often carry more credibility with a jury. Has the expert published something inflammatory or controversial? These experts would have baggage and would be less desirable.
Experts affiliated with colleges and universities may carry more weight with a jury. The ideal academic position is with a prestigious local university that is likely to be well respected by the jury.
Perceived ability to communicate and persuade
In preliminary verbal contacts with the expert (on the phone or in person), did she have good communication skills? Was she likeable and even-tempered or was she pompous and unfocused? Did she appear to have an agenda? Can she explain complicated concepts effectively in laymen’s terms? Is she likely to do well in front of a jury?
Is there anything in the expert’s past that can be used against her? Controversial writings? Unprofessional marketing activities? Bias to one side or industry? Is she a “professional” witness who no longer works in the field in question? Was she disqualified in the past? Were there any disciplinary or legal problems? Is there anything on the expert’s Web page that will be used by opposing counsel against the expert?
It is less expensive to use an expert who is local to the venue of the litigation. Paying an expert to travel gets very expensive. Jurors may also be more likely to believe a local expert who is “one of them” and not a hired-gun outsider.
This is not the primary consideration, but it will come into play if the fee is too high or too low, or if the case is small. The more at stake in the litigation, the less cost-sensitive the attorney is likely to be. Also, if the fee is too low, the attorney (and jury) may ask, “What’s wrong with this expert?”
Relevant, recent, practical experience
This plays well with a jury. The more the expert has, the better.
Easy to work with, reasonable
This information will be determined from initial contacts and by checking with the attorney’s colleagues. Is the expert easy to deal with? Does she return phone calls promptly? Are her retention terms reasonable? Is she pompous and arrogant or have a chip on her shoulder regarding attorneys? Does she do things when she says she’s going to do things? (For example, faxing over a fee agreement and CV promptly.) Is the expert a good listener or does she constantly interrupt the attorney when talking on the phone?
Counsel is looking for an expert who the jury will like and want to believe. Does the expert look credible? Is the expert disheveled or does the expert make an excellent appearance?
Something that makes the expert unique
For example, being the winner of a prestigious award, an inventor of a breakthrough device or being a famous person.
Supply and demand
The more choices the attorney has, the more picky he can be.
In the end, the attorney may have more than one very qualified expert witness to choose from and he may follow his subjective feeling as to who will perform better and be most persuasive. He may select the expert he likes and with whom he feels most comfortable.
The above was adapted from Chapter 17 in The A-Z Guide to Expert Witnessing.
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