What to learn about your expert before retention

By Gerald D. Martin, Ph.D.

Past testimony

Has his testimony been disallowed or impeached? If either has happened in the past, the expert, like the old soldier, will probably slowly fade away. Marginal expert qualifications could lead to failure to qualify in court, thus having his testimony disallowed, while contradictions between past sworn statements, depositions, and trial testimony could possibly be a cause for impeachment. You don’t need either of these problems, especially when you may have to explain to your client why his money was wasted on someone who could not help the case.

Applicability of experience

Is he qualified for your particular needs? An expert who handles a rather substantial number of cases a year, say at least 50, has of necessity become a specialist in certain types. For example, a forensic economist in high demand will probably limit his practice to personal injury, wrongful death, and wrongful termination, with an occasional marital dissolution. If your case involves something entirely different, like crop losses, breach of contract or misrepresentation in the sale of a business, you still need a forensic economist, but one with a different focus.

Personality

Does he appear confident and mild-tempered? Confidence is expressed through poise, appearance, and the ability to communicate; both verbally and with body language. Try to see your expert through the eyes of a juror. You are using an expert because he has special knowledge a juror is not normally expected to have, and he must give this information to the juror. Can he do it in a clear, concise manner? Can he appear knowledgeable without appearing cocky? Can he explain a concept to laymen without being patronizing?

All witnesses are nervous before a jury, even the experts who have been there many times. They know that large sums of someone else’s money are in the balance, and the economic testimony is critical if liability seems strong. But the expert must be able to maintain control despite being nervous. He should never lose his temper or become upset under cross-examination, no matter how grueling. When he is caught in an honest mistake, he should calmly admit it and correct it. The jury doesn’t want to hear a long-winded explanation of why a mistake was made; keep it brief and move on. If questions remain, they will be handled on redirect.

Availability

Will he be available when you need him? Both you and the expert must make firm commitments, and you should check with your expert before scheduling his time. He would not have taken the case if he did not think he would be available when needed, but this does not mean he is waiting by the phone for your call. Work together, keep in touch, let each other know of changes in trial dates, vacation schedules, and anything else that may cause a conflict.

References

Is he recommended by other attorneys? Any expert you contact should readily give you a list of attorneys for whom he has worked, and a couple of phone calls will probably give you answers to the previous five questions. Learn whether he has worked for any law firms on more than one case. If not, you certainly want to know why.

Checklist for choosing an expert

1. Are his educational credentials appropriate?
2. What are his professional affiliations?
3. What has he published?
4. What is his level of experience?
5. Is his work fairly divided between plaintiff and defense?
6. Are his fees reasonable?
7. Will he be available when needed?
8. Can he communicate well?
9. Is he familiar with the various methods used by others?
10. Is he disinterested in the outcome of the case?
11. Can he maintain composure under cross-examination?
12. Do you feel comfortable working with him?