Last time, we discussed the Federal Rule that governs the use of expert witnesses in Federal cases and discussed a couple of examples of where the use of an expert witness was instrumental in a case (including one involving the Forensic Discovery team). Now, that you understand the benefits of using an expert witness, let’s discuss what you need to look for when selecting an expert witness.
There are at least six potential factors to consider when selecting an expert witness and several of them interrelate to each other:
- Expertise in the Subject Matter: Obviously, it’s important that an expert have sufficient expertise in the subject matter about which he or she will be testifying (or preparing a declaration or affidavit). What should you look for to confirm sufficient expertise when you don’t have the expertise yourself? Years of experience in the discipline, as well as certifications and recognitions, is a logical place to start. But it doesn’t stop there. Also look for examples of thought leadership in articles and blog posts like this. Finally, ask them questions about the subject matter and consider their responses to see how their expertise confidently comes across in their answers.
- Communication Skills: Some of the biggest experts about a technical subject are just not cut out to be expert witnesses. One of the differences between those who can be good expert witnesses and those who can’t is good communication skills. A good expert witness understands how to explain highly technical topics in a way that non-technical people (like many lawyers and judges) can understand. Again, examples of thought leadership in articles and blog posts convey their ability to communicate these topics in written form (which they may need to do when preparing a declaration or affidavit) and the questions you ask will convey their ability to verbally communicate effectively as well. If you can’t fully understand their answers, the judge or jury may not either.
- Credibility: The expert witness’s expertise and communication skills enable the witness to project a level of credibility that can convince judges or juries of the validity of the position he or she is taking. As we saw in the Benebone case we discussed last time, the credibility of the defendants’ expert’s analysis was a key factor with the judge (who remarked that he was “knowledgeable and credible”.
- Trustworthiness: An effective expert witness should be able to consider and discuss all facts related to the topic requiring testimony, including facts that may be unfavorable to your side. This is not the time to hire a “yes man” (or “yes woman”); you need someone who will give you all of the considerations (including the ones that may be difficult to hear).
- Expert Witness Experience: In addition to experience and communication skills, you also want an expert witness with a proven track record as an expert witness in testimony, affidavits and declarations. The expert witness should be able to provide you with those documented examples. While it’s true that “everyone has to start somewhere”, it’s always better to select a witness who can demonstrate prior experience as witness.
- References: As a part of that experience, you also want to obtain references from clients that have used the expert witness in the past. That will go beyond the documented examples in that you can learn how the expert witness met the client’s expectations.
Selecting an expert witness for your case is an important decision and one that shouldn’t be rushed. If an expert that you’re considering doesn’t address all six considerations above, they may not be the expert you need to serve as a witness in your case. Take your time, evaluate and choose carefully!
