The modern world of litigation is multifaceted. As legal disputes grow in intricacy, technicality, and scope, the role of the expert witness has become not only desirable but, in many cases, indispensable. Whether defending a corporation in a high-stakes commercial dispute or assisting a plaintiff in a complex intellectual property case, hiring the right expert witness can be a decisive factor between victory and defeat. This article delves into the strategic considerations, best practices, and detailed perspectives to help practitioners when selecting and working with expert witnesses, as covered in our recent webinar.
The Increasing Importance of Expert Witnesses in Litigation
In today’s legal environment, the expert witness is more than a supporting actor; they are often a linchpin to the narrative of a case. Although not every case legally requires the involvement of an expert, their ability to break down complex matters can be invaluable.
Expert witnesses serve as translators, transforming technical language, knowledge, and volumes of data into a narrative that judges and juries can grasp. An expert’s testimony can clarify ambiguities, untangle financial intricacies, and lend credibility to arguments that might otherwise be lost in technical and legal jargon.
The Strategic Value of Early Involvement
Too frequently, attorneys postpone the involvement of expert witnesses until the damages phase or later stages of litigation. This common misstep can limit the expert’s ability to influence the direction and strategy of the case. Early engagement is a critical best practice. By involving experts from the outset, legal teams can:
- Shape legal strategy with technical or financial insights.
- Identify key issues and potential issues before they become larger problems.
- Assist in discovery by helping to target the right documents and data.
- Begin crafting compelling narratives for eventual presentation in court.
Best Practices for Selecting an Expert Witness
Finding the right expert is both an art and a science. Given the frequency with which experts are used, practitioners must be deliberate and discerning. Here are the essential steps:
1. Define the Needs of Your Case
Every case is different. A damages expert who excelled in a previous matter may not be the ideal fit for your current dispute. Start by gauging the unique aspects of your case:
- What specific knowledge is required? Is it financial, technical, scientific, or medical?
- What is the scope of the dispute, and what questions will likely be presented to the expert?
- Will the expert need to explain advanced concepts to a lay audience, or will their primary audience be a technically sophisticated judge?
2. Tap Into Professional Networks (With Discretion)
Attorneys often reach out to colleagues within their firm or professional circles, soliciting recommendations for experts. There is great value in personal referrals and proven track records, but one must not default to using an expert simply because they succeeded in another colleague’s case. The specific facts of each case matter, so consider whether the expert’s knowledge, communication style, and experience align with your case’s demands.
3. Scrutinize Qualifications & Experience
A well-credentialed expert is not necessarily an effective one. Vet the expert’s formal education, certifications, and prior experience serving as an expert witness. Explore the following factors:
- Their testifying history: Have they been qualified as an expert in court before? Have their opinions held up under cross-examination?
- Relevant publications or speaking engagements: These can reveal both depth of knowledge and the ability to communicate clearly.
- Potential conflicts of interest or bias: Scrutinize whether the expert’s prior engagements could compromise their perceived neutrality.
4. Gauge Communication & “Jury Appeal”
Regardless of technical mastery, an expert should be able to communicate concepts clearly and confidently. The most persuasive experts are those who can narrate complex matters in simple, relatable terms, never talking down to the jury, skillfully connecting the technical data to everyday language. Consider requesting a mock direct or cross-examination to evaluate the candidate’s presence and poise.
5. Create Alignment on Expectations & Roles
Clear communication at the outset prevents confusion and disappointment later. Define the expert’s role: Will they serve as a consulting expert whose work is protected by privilege? Or, will they serve as a testifying expert whose opinions will be subject to discovery and scrutiny? Outline deadlines, deliverables, and expectations with the expert.
Engaging & Collaborating With Experts for Success
After selecting an expert, the real work begins. The most fruitful attorney-expert relationships are founded on mutual respect, transparency, and active collaboration. Here’s how to cultivate such a relationship:
1. Share Information Openly
Provide your expert with the documents, data, and context they need. Withholding or filtering information may seem tempting in an effort to control the narrative or avoid “bad facts,” but it often backfires. Experts who are blindsided by unfavorable facts on the stand lose credibility. A well-prepared expert, with a full view of the record, can anticipate and proactively address weaknesses.
2. Leverage the Expert During Discovery
Experts are invaluable during discovery. They can help identify critical documents, frame discovery requests, and suggest lines of questioning for depositions. Their technical knowledge can also help streamline the process, focusing time and resources on the issues that matter most.
3. Prepare Thoroughly for Testimony
Expert testimony is a performance as much as it is an exposition. Mock examinations, both direct and cross, are essential. Use these sessions to:
- Polish the expert’s explanations of key concepts.
- Rehearse responses to anticipated attacks on methodology or credibility.
- Instill confidence and composure under the pressure of adversarial questioning.
4. Emphasize Objectivity
Effective experts do not appear as advocates for the party that hired them. Jurors and judges alike are wary of “hired guns.” Instead, encourage your expert to maintain independence and objectivity, drawing conclusions grounded in the evidence.
Common Missteps & How to Avoid Them
Even seasoned attorneys can fall prey to pitfalls in the expert witness process. Some common challenges include:
- Engaging experts too late, thereby missing opportunities to shape strategy and discovery.
- Choosing an expert whose credentials shine on paper but who lacks courtroom experience or effective communication skills.
- Failing to vet the expert’s prior testimony, leaving the door open for impeaching material to surface during cross-examination.
- Allowing the expert to overstep their role, offering opinions on legal conclusions rather than sticking to their area of expertise.
Vigilance at each stage, including selection, engagement, and preparation, can help prevent these mistakes.
The Lasting Impact of the Right Expert
An expert witness can tip the scales in high-stakes litigation. Their impact is felt not only in the courtroom but throughout the life cycle of the case, from early strategy to settlement negotiations to final verdict at trial. By choosing wisely, engaging collaboratively, and preparing thoroughly, one can harness the full value that expert witnesses offer.
How Forvis Mazars Can Help
The decision to hire an expert witness is not to be taken lightly. It demands strategic thought, diligent vetting, and ongoing collaboration. A clear, credible, and compelling expert will remain essential in the complex landscape of litigation. If you have any questions or want to learn more about hiring an expert witness, reach out to the Forensics team at Forvis Mazars.