Litigation Strategy

10 Tips for Choosing the Best Expert Witness

It is vitally important to find the right expert for your case. Both experts and fields of expertise are highly specialized and compartmentalized. Just because an expert is effective in one subject area does not mean he or she will be effective in another, even closely-related, area. Similarly, experts who are successful in one geographical area may not “sell” in another. It is important to constantly look for new faces and be willing to go outside the immediate geographical area to find the expert best qualified for your particular case and question in issue.

Here are 10 tips for choosing the best expert witness:

  1. Check qualifications. The expert’s qualifications, education, and experience should prepare him or her to offer opinions on the particular subjects in issue.
  2. Consider effect on the jury. A jury should find an expert’s appearance, demeanor, and manner of answering questions persuasive.
  3. Assess capability. Experts must be able to withstand the rigors of direct and cross-examination and the pressures of the courtroom. Simulated cross-examination (particularly by an attorney other than the one responsible for the case) and review of an expert’s deposition testimony can provide information on how the expert may perform at trial.
  4. Ensure independence. Although you want an expert who will vigorously assert your position, the expert should view the case critically and prepare you for any weaknesses in the case so there will be no surprises at trial.
  5. Confirm availability. The expert’s schedule should permit him or her to devote sufficient time to your case.
  6. Consider compatibility. The expert should be someone with whom you can work effectively, particularly under trial pressure.
  7. Prepare for claims of bias. An expert who testifies overwhelmingly for one side or the other gives the opposition a golden opportunity to impugn the expert’s objectivity and integrity. Also, determine whether the expert has written anything on the subject in issue that is inconsistent with your position.
  8. Confirm acceptance of position. Find an expert who is truly comfortable with the position he or she has been asked to take in the case.
  9. Consider experience or inexperience. For experienced expert witnesses, consider their reputation among judges and other attorneys, whether they are burned out or overused, and their library of depositions and trial transcripts that can be used on cross-examination. For inexperienced expert witnesses, consider their qualifications and their ability to respond effectively on direct and cross examination.
  10. Decide between insider and outsider. It may be easier and most cost effective to use your client’s employee as an expert witness, but this may have drawbacks, including lack of objectivity, too much knowledge of the subject matter of the case, and ineffectiveness on the stand.

For everything you need to know about locating and retaining the best expert witness, see California Expert Witness Guide, chap 7 (2d ed Cal CEB 1991). On expert witness discovery and the use of experts in all phases of litigation, check out Handling Expert Witnesses in California Courts (Cal CEB Action Guide May 2008).

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© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “10 Tips for Choosing the Best Expert Witness”

I would only add that the personal appearance and dress help to make a favorable impression. I once had an expert in seat belts show up on the date he testified, with his hands stained dark brown from “stripping his walnut trees”. Let me assure you it did not help my case!

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