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How to Select an Expert Witness in a Saturated Market
- Aug 15, 2022
- Latest Journal
by Jonathan Raphel, Vice President at GLG Law
Given the importance of selecting the right expert witnesses, it can and should be one of the most time-consuming aspects of any litigation. While in some cases finding the perfect expert is like finding a needle in a haystack, other cases present the opposite problem — having to select among a panoply of qualified experts. With expert search firms, colleagues, and consultants all offering highly credentialed recommendations, how should you choose among several experts who all seem good enough?
Choose Your Expert Witness Early
While it’s important to take the time during the pendency of litigation to track down the best expert team, it often makes sense to engage an expert — if the budget allows— to help with analysis at the outset of a case, even if this person is not ultimately the expert you would use at trial. Sometimes the most critical expert is the one who can help you develop your position at the outset.
This may mean pointing you to the discovery you need, providing the facts or insight needed for strategic decisions, or, crucially, ensuring you do not take positions you need to retract later. This initial work also is not wasted if you engage a different testifying expert. If the engagement is structured correctly, the initial expert can support the trial witness as a member of their team.
Choose with the Finder of Fact in Mind
When it comes time to select among potential testifying experts, the primary consideration should be picking the expert who will be most compelling for the finder of fact in your case — whether a judge or a jury. This becomes even more important in a crowded space, where shiny credentials are easily found and your adversary will likewise have many well-credentialed options. In general, the following three characteristics are key:
• Credibility: An expert who comes across as honest and forthright is critical for both a judge and a jury. Particularly for a judge, in our experience, credibility is fundamentally driven by (a) the foundation for the expert’s expertise and (b) the expert’s demeanor. Many “professional” experts stretch to testify on topics tangential to their expertise. Taking the time to find an expert who spent their nonexpert career doing precisely the type of analysis you need and can clearly demonstrate their experience is inherently far more credible than a generalist who has never operated in a particular niche before and is instead relying on more general “expertise.”
• Ability to Connect: One challenge with specialists is that while they have the best understanding of their field, they can lack the ability to explain its nuances to outsiders, which can distract from their credibility. An ideal expert will be able to connect with the finder of fact, deftly differentiating the relative merits of the parties’ positions and avoiding hyperbole or taking too strident of a position. This consideration leads many lawyers to pick professional expert witnesses accustomed to dealing with a lay audience — and with a jury the trade-off can make sense. And while it is important to have a facile expert, when the finder of fact is the bench, in our experience nothing can substitute for the credibility boost a true specialist will receive — particularly when weighed against the testimony of another well-credentialed but less specialized expert.
• Thoughtfulness: Whether a judge or jury is the finder of fact, it is important to find an expert who is measured, considers their answers, and does not need to prove that they are the smartest person in the room. While some experts come by this trait naturally, it is also something that a litigator can hone by spending a significant amount of time with the expert and by helping them understand the traps the other side may try to lay and how to avoid them — while always testifying truthfully.
Evaluating all potential experts across these three metrics should allow you to start to differentiate among them.
Polish Is Overrated for an Expert Witness
While experience testifying is undoubtedly helpful in certain circumstances and may save time and effort in the preparation stage, many attorneys tend to overvalue it — especially the overrated quality of “polish.” A less experienced, well-spoken expert often comes across less like a hired gun, and the lack of seemingly rehearsed polish can make the expert appear more credible and relatable, so long as the trade-off is not a lack of thoughtfulness.
Often, a less experienced expert may also have lower hourly rates. Realize, though, that you will need to spend more time with inexperienced experts at all stages of the case, so although the rate may be lower, the extra hours expended may result in a higher overall cost.
Do Your Homework
If an expert has prior testifying experience, many attorneys will seek services that show the results of the expert’s past cases, challenges made to their credentials, and so on. While this information is valuable, it is worth taking the extra step of tracking down counsel in those cases and obtaining their views on your expert candidate. People are generally willing to provide honest opinions — positive or otherwise — which can be critical to avoid making the wrong selection.
If an expert does not have any prior testifying experience, there is a bit more risk, but this can pay off in terms of credibility in front of the fact finder. It will, however, take more time up front in the interview process to pressure-test for weak points, and you should make sure to meet with the expert in person at least once, if possible, before settling on them. You should also identify references who can speak to the expert’s ability to influence a room or convey ideas to a nonexpert audience — ideally both references provided by the witness and by unbiased third parties.
Finding the right experts takes time and effort, especially — and counterintuitively — in a crowded field. Ideally, you should interview several options before you find the right person. You should seek recommendations from your client, who often operates in the relevant industry, from your colleagues, and from search firms that specialize in finding experts whom practitioners may not have the time to track down. If someone you interview is close but just not quite the right fit, they may be a great source for recommendations more exactly on point — fundamentally people want to be helpful and will often go above and beyond to point you in the right direction.
Given the importance in today’s litigation landscape of expert testimony, obtaining the most advantageous outcome for your client is worth the time and effort. Sometimes in a crowded and established expert space, where the subject matter is well-worn, it feels like fighting the other side to a draw is the best-case outcome, and thus not worth the time investment. We strongly discourage this view. Failing to pick an expert in a well-understood field can be as devastating as doing so in a more underserved market.
Be Willing to Make Changes
One final warning — be flexible. Cases develop, and the perfect expert at one point may no longer be the ideal one as the key issues in dispute become clear. Be willing to change experts if needed, even if the case is significantly advanced.
The right expert can integrate the facts across a case and present them compellingly to the finder of fact in a unified fashion that more scattered fact testimony inherently lacks. Finding a highly credible witness who can tell your story clearly at trial is invaluable. Given this, a saturated field of expert testimony is not a reason to spend less time looking for the perfect expert; it is a reason to spend more time. The effort to find a true expert on the issues in your case, who can also connect with the finder of fact, is an investment that will pay off — especially if the opposing side does not invest the time.
GLG’s Expert Witness Service helps lawyers find the right expert witnesses for their cases. Our compliance team focuses on providing high-quality expert candidates to help your case achieve the best outcome. Every engagement begins with a discussion between you and your GLG team to fully understand your specific expert needs. Learn more about our expert witness process and start your search here.