5.6.2.3 Selection and Retention

• Jurisdiction: Arizona

Finding the right expert is even more important than the decision to retain an expert. You should start the selection process early enough to confirm your comfort level with the expert’s background, schedule, testifying abilities, and willingness to roll up her sleeves.

The qualities you are looking for in an expert depend on whether the expert will be used only as a consultant, only as a testifying witness, or as both. Both types of experts should possess expertise in the relevant discipline and be able to contribute to a clear understanding of the problem. A good consultant will be an active member of the attorney’s team, taking part in strategy decisions, discovery initiatives and claim analysis. A testifying expert serves a different purpose. Technical qualifications are important, but persuasive ability is paramount. Intelligence, verbal ability, appearance, demeanor and personality are also critical. The testifying experience of your expert in depositions, trials and arbitrations is very important. An expert may be an excellent technical contractor, engineer, or architect, but can be ineffective if he or she cannot write appropriate reports, cannot handle the pressure of a deposition, or cannot persuade the trier of fact. Hands-on experience and the ability to speak in simple terms will usually have a better effect on a jury or arbitration panel than knowledge of esoteric scientific theories.

The best sources for experts are your partners, other attorneys, your clients, and other clients in the same profession. There are also various directories and registers listing experts. Be sure that you and your expert do a conflicts check on all parties involved early in the process to avoid possible expert disqualification or allegations of...