Civil Litigation Employment Law Legal Topics Litigation Strategy

Choosing an Expert Witness: Insider or Outsider?

When choosing an expert witness in a case, you may have a choice between an insider, i.e., an employee-expert, versus an outside expert. Deciding which one to use requires an understanding of the pros and cons of the employee-expert.

Your client may have employees who are experts, particularly in medical malpractice, products liability, insurance (bad faith), and commercial cases. Consulting these insider experts is obviously very convenient and cost-effective, because these experts are already on the client’s payroll. And there are even more advantages to using insider experts:

  • These employees are often more knowledgeable than an outsider about the particular part, incident, or other matter in issue.
  • The employee-expert is exempt from the claim of being a “hired gun.”
  • In some cases it is tactically advisable, if not mandatory, for a representative of the party to testify. For example, it’s almost impossible for the defendant in a products liability suit for defective design not to call a representative of the company to “defend” the product. The same is true of a hospital defendant in a medical malpractice case.

There are also disadvantages of using an employee-expert. In fact, using employees as experts at trial presents at least three significant drawbacks:

  1. Because the employee works for the client and depends on the client for paychecks, future promotions, and pension, the employee’s objectivity is subject to attack by the opposition on cross-examination.
  2. The employee frequently knows too much about the subject matter of the case, e.g., other claims, related problems, or similar litigation. Engineers, in particular, can usually find fault with any product or procedure or can envision some unusual set of circumstances that would have allowed the incident to occur in the way the opposition alleges.
  3. The employee may simply not make a very good witness on the stand.

How do you resolve the dilemma of whether to use an employee-expert? When meeting with the employee-expert early in the proceedings, assess whether the employee single-handedly will be able to provide effective trial testimony. If not, determine whether to hire an outside expert to supplement or replace the insider as a trial witness. The nonemployee-expert generally has the advantage of being unaware of counsel’s in-house problems, e.g., poor test results, that may “contaminate” the in-house expert. Further, you’ll be free to use an expert with previous experience who makes a good impression in court.

On the other hand, if you use only an outside expert, he or she opens your client to the argument: “They couldn’t find a single person in their own organization to defend the—[e.g., product, operative procedure, practice]—and had to hire a mercenary at X dollars per hour to make their case.”

There is no perfect solution to this dilemma; you simply have to make the best of the situation on a case-by-case basis. Often, a combination of an employee-expert and an outsider is the best solution.

For complete coverage of all the issues involved in locating and retaining the best expert witness for your case, turn to CEB’s California Expert Witness Guide, chap 7. For a description of the steps you should take when you want to exchange expert witness information, explore CEB’s free, online guide: How To Exchange Expert Witness Information.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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