Top ten things to look out for when hiring an expert
In response to an earlier blog, a colleague (The Expert Institute) forwarded to me a list of their top ten things to look out for when hiring an expert:
An expert who spends a disproportionate amount of time as an expert. As I had mentioned, experts in many of the states where I testify must have a minimum of 10% of their practice treating the types of cases they are testifying about. Vet your expert’s time allocation.
The specialist requires a fixed rate retainer that is far in excess of the amount of time they will need to review materials. Retainers should be reflective of the expert’s hourly charges and representative of what one would expect for the time invested.
Beware of the specialist who is difficult to reach. It is my belief that any time you have a professional on a retainer, they should make themselves available with the exception of vacations, other trials, and emergencies.
The specialist is not presentable to the jury. Although it would be ideal that every expert is a good teacher and can connect with the jury, not all experts can master the talent of communication. You may need to prepare your expert for the task if they are less than skillful in their presentation.
The specialist has no experience testifying. I just completed a seminar with this being one of the topics being discussed. The presenter offered the comment that the expertise is more of an issue than prior experience in trial. Trials can be trying for an expert if they are challenged by the scrutiny of cross-examination you may want to reconsider using them live at trial.
The candidate advertises as an expert witness. When an expert advertises they are subject to a cross-examination question of authenticity. However, advertising of and by itself is not the issue from my perspective, but rather the appropriate use of the venue and the accuracy of the statements being made.
Your expert witness only testifies for defense or plaintiff. It is not uncommon for an expert to be called by one side or the other. A disproportionate balance may be reflective of the community, the area of expertise or other unknown issues. Ask the expert about their experience as a part of your vetting process.
Professional, disciplinary actions brought against the specialist. Disciplinary action is an issue that needs to be addressed head-on. Be sure you understand the circumstances and discuss the issue as soon as you become aware of it.
The disparity between the expert’s initial remarks and testimony. Impeachment leads to a diminution of the witnesses’ credibility. Confirm before and after depositions of any disparity so you are not surprised at trial.
The candidate does not have the same specialty (or subspecialty) training as the defending party (or opposing party’s expert). Subspecialties in professional arenas are as different as the preverbal night and day. Ask your expert how their expertise differs from opposing counsel’s expert and decide if your expert meets the demand. If not, consider an alternative.
I find agreement with most of these as noted above although I would refer you to the original source to get more detail for any of the items listed.
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