3 Reasons Why a First-Time Expert May Not Be Your Best Choice
Litigators are often faced with a tough choice when selecting expert witnesses for a case: Do you work with a first-time expert—that is, someone with the right qualifications but no litigation experience? Or you go with an experienced expert who has both exceptional qualifications and experience as an expert witness?
Some attorneys are inclined to select a first-time expert after being dazzled by the expert’s credentials or the expert’s enthusiasm for the case. Other attorneys suggest that an expert witness who doesn’t make a habit of testifying can more easily be portrayed as a knowledgeable source whose only loyalty is to the facts and specifics of his or her field. Sometimes the reason for wanting to work with an inexperienced expert could even be that they are a known entity. Perhaps the expert is someone the attorney already has a relationship with and trusts.
Although a first-time expert could possibly help an attorney avoid opposing counsel’s attempt to paint the expert as a hired gun, there are several drawbacks to working with an expert with no litigation experience.
1) Showing Inexperienced Experts the Ropes Takes Time
The primary drawback of working with an inexperienced expert witness is time. First-time experts always need a lesson on the relevant legal standards and how to comport with them. As a result, your legal team may spend more time reviewing drafts of the expert’s report or preparing the expert to provide testimony than you originally anticipated. And of course, all of that time is on the clock. More often than not, you’ll need to replenish your expert’s retainer agreement much faster than you anticipated. Cutting corners on the time spent with an experienced witness, however, can spell disaster. It’s imperative that a new expert receive the proper foundation required for success in the current case
An expert with a history of participation in the litigation process—including record review and consultations, conducting expert tests, report writing, depositions, and court appearances—will have a much stronger understanding of the trial preparation and performance process. Experienced experts also tend to be familiar with confidentiality and expert testimony requirements. Some are well-versed in the requirements for qualifying an expert witness and for admissibility of an expert’s report, particularly if most or all of their service as an expert has taken place within the same jurisdiction. This means that more than likely, fewer revisions of the expert’s report will be required.
Attorneys will generally get more bang for their buck when they select an expert who has more litigation experience because they spend significantly less time preparing an experienced expert.
2) Establishing Liability, Causation, and Damages May Be Tricky for a First-Time Expert
It’s important to remember that the purpose of introducing any expert testimony is to educate the fact-finder on specialized or technical issues. But an expert who has litigation experience is much more familiar with legal standards necessary to establish liability, causation, and damages than a first-time expert.
Experts who are new to legal consulting work may not understand that although causation and liability are closely linked, they are two separate questions. Not only will it take the attorney time to explain these concepts to a new expert, but there’s always the risk that this framework may be tricky to grasp.
When discussing whether to choose a seasoned expert or an inexperienced expert, consider the gravity of the issue in the case and the stake of the matter at hand. A seasoned expert will likely be a better advocate for the highly-contested issues in your case such as ‘standard of care’ in medical cases. Seasoned experts will also be the better bet for speaking to liability and causation in cases involving multi-million– or billion-dollar damages. In high-stakes litigation, stronger experts almost always lead to larger payouts.
3) Beware of Inexperienced Experts Overstepping in Their Opinions
The last thing you want is to have your expert’s testimony excluded because they strayed into the province of the judge. Under Federal Rule of Evidence 704(a), expert witnesses may offer testimony on factual issues that a jury will decide, as the “trier of facts.” They cannot, however, render legal opinions or advise a jury on the law. They must not even tread too closely to legal opinions by asserting what law applies in this case or inferring that a defendant violated the relevant law. This is the sole arena of the judge, who will kick your expert testimony out if he or she perceives a whiff of legal opinion in the expert’s testimony.
First-time experts could also run into the problem of offering net opinions. One way to explain the net opinion problem is to liken it to a math problem. Just as teachers often expect students to “show their work” when solving an equation, courts expect experts to also “show their work” by laying out the evidence and methods that informed their conclusions. An expert’s opinion cannot be offered without the support of facts, data, principles or methods—just as the “show your work” requirement in math class can’t be met by simply writing down the answer.
On the witness stand, experienced experts use their past experience to inform and improve their methods of providing testimony. With practice explaining complex topics to juries, these experts can often break down highly technical subject areas into clear, simple explanations that juries and judges can easily grasp, making the attorney’s case that much more airtight.
There are more than a few things to consider when choosing between an expert with considerable experience in litigation and an expert who has never been inside a courtroom. But for any attorney handling a high-stakes or time-sensitive case, an experienced expert is always the best bet. Retaining an expert who has experience consulting attorneys, writing reports, and taking the stand will make the job of the entire legal team that much easier.
Of course, any expert witness should be selected only after research has been done into both the expert’s qualifications and their more intangible qualities, like professional communication. The optimal experience level for an expert witness will always be the one that fits within the context of the expert’s qualifications and the context of the case as a whole. The best way to ensure you have the most qualified expert possible on your side is to custom-recruit a seasoned professional for your case using an Expert Search. Expert Searches find the ideal expert witnesses for their open matters, using the case facts, case theory, and client needs as a guide for selecting candidates. You can learn more about Expert Searches here.