Expert Witness Selection — 11 Attributes to Consider
You’ve decided on the type of expert witness you need for your case, along with the professional qualifications this witness should have so you can sleep more easily at night. Now you’re completely ready to snag your witness — or are you? When choosing your expert for the witness stand, remember to carefully consider other qualities he or she should possess. Here are 11 witness attributes to keep in mind when making your all-important selection, excerpted from Robert C. Clifford’s Qualifying and Attacking Expert Witnesses:
Communicative skills: If the expert is to testify, obviously he or she must have the ability to communicate his or her opinion and explain the basis for the opinion to the jury. The expert should be able to distill a complicated, intricate matter and explain his or her thesis to the jury. He or she must be articulate and persuasive, without appearing to be overbearing.
Honesty: Obviously the expert must be truthful and honest, but beyond the question of honesty, take care not to retain an expert who is willing to exaggerate his or her qualifications or to offer an opinion that is not in accordance with recognized authorities in order to obtain the assignment.
Reputation: An expert who is preeminent in his or her field or the recognized authority in the area can be extremely effective. The opinion offered by the author of the primary treatise in the field or the leading academician obviously will carry great weight with the jury. If he or she is a person upon whom the opposing expert recognizes and relies, you obviously have established a further advantage.
Time and availability: If you intend to use the expert as a resource during the pretrial preparations as well as a witness at trial, make certain that your intended expert has the time available to properly assist you. Remember that although you will attempt to accommodate his or her schedule and other commitments, time demands may nevertheless be set by the opponent or the court.
Attitude: The positive attitude and pleasant personality of a witness is an important attribute of your expert if you anticipate that he or she will testify. If he or she is boastful or has a pompous attitude, it may be wiser to select an expert who may not possess all of the qualifications of the other but will make a better impression on the jury.
Employee of party: The highest qualified expert may also be an employee of your client. He or she might have an excellent educational background, be very well trained and be intimately involved with the project at issue for a substantial period of time. Nevertheless, weigh the advantages of using him as an expert against the charge that he or she would have an obvious bias in favor of his or her employer.
Academic vs. practical: Depending upon the facts of the case, a nonprofessional expert with practical experience may be substantially less expensive, but also may be more effective than a professional academic expert. Frequently a person with practical experience in a field can be more persuasive than an academic who lacks significant practical experience. However, in cases of extreme complexity, it is generally necessary to present a highly qualified academic with distinguished scholarly achievements in order to effectively explain the concept to the jury.
Prior witness experience: It can be advantageous if the expert has had substantial experience as an expert. If he or she has testified before, consult with other attorneys who have used him to obtain their opinion on his or her effectiveness. If he or she has appeared in court he or she probably will not be as intimidated by the prospect of cross-examination as an inexperienced witness might. An experienced witness is often able to turn the examination by opposing counsel to an advantage by reiterating and reinforcing his or her direct testimony.
Proximity: It may be important that the expert be located in close proximity to you in order to facilitate conferences and consultations. If the expert is some distance from you it may inhibit your ability to provide needed data and receive verbal reports from the expert.
Age and health: The age of the expert you are considering may be a factor to consider. For example, it might be a disadvantage if there is a wide disparity in age between your proposed expert and the defendant in a negligence action relating to the standard of care. The expert should be old enough to have had sufficient experience in the field, but still be young enough to have received recent training and be aware of new concepts and current developments that have taken place.
Agreement with case theory: Seek an expert who is in general agreement with your theory of the case. If an expert has substantial doubts concerning the position he or she will be asked to put forward, the doubts will probably become evident after his or her cross-examination.
Robert C. Clifford resides in Carmel, California. He serves as a consultant to law firms and as an arbitrator and mediator in insurance and litigation matters. He has been the senior partner of an Oakland, California law firm where he specialized in general litigation, including real property disputes, personal injury litigation, insurance matters, contract disputes, will contests, and estate matters. In addition to lecturing and participating on panels relating to litigation, he is the author of California Insurance Disputes, the coauthor of California Trial Techniques, and the author of California Uninsured Motorist Law. He has also contributed chapters on officers’ and directors’ liability insurance, property insurance, and professional liability insurance to California Insurance Law and Procedure. Mr. Clifford has served on the Board of Visitors of the Stanford Law School and is a member of the American and the California State Bar Associations. He serves on various committees relating to insurance and litigation matters.
