Selecting and Preparing an Expert Witness in Civil Litigation

• Jurisdiction: United States,Federal
• Citation: Vol. 17 No. 04
• Publication year: 2013

Selecting And Preparing An Expert Witness In Civil Litigation

by L. Richard Fried, Jr.

Selecting and preparing an expert witness represents a critical process for any case. This article will highlight some issues an attorney may want to consider relating to the retention of an expert witness in civil litigation, beginning with evaluating whether to retain an expert witness in the first instance, and ending with preparing an expert witness to testify at deposition and trial.

Do You Need To Retain An Expert?

The issues raised in a particular case will determine whether an attorney needs to retain an expert witness. In general, an expert witness is a witness with scientific, technical, or other specialized knowledge who will help the trier of fact understand the evidence or determine a fact in issue. Rules 702 through 706 of the Federal Rules of Evidence and the Hawaii Rules of Evidence govern an expert witness' testimony. Case law also establishes specific issues and procedures regarding experts.¹

In general, an expert witness is not required when an issue is understood by the average person. It is only when an issue is outside the average person's understanding — such as deciding whether a specially trained professional met the standard of care required of his or her profession — that an expert is needed to assist the trier of fact and provide a sufficient basis for the trier of fact to render its decision.

An attorney should note that the need for an expert may not necessarily be apparent at the beginning of a case. Issues requiring expert opinions may not arise until after discovery progresses. Thus, an attorney should perform an early evaluation of the case and analyze whether an expert is needed, and even if that early evaluation leads to the conclusion that an expert is not needed at that time, the attorney must continually evaluate the issues that develop in the case thereafter to re-analyze whether to retain an expert.

Deciding The Type Of Expert Needed

Once the decision is made to retain an expert, the attorney should begin the process of finding, consulting with, and retaining the expert as early as possible, often before suit is filed. Early discussions with an expert can impact the decision about whether other experts are needed for a case and also, in a plaintiff's case, the attorney's decision about whether to take the case in the first place.

Before starting to research the names of potential experts, the attorney should consider what type of expert is needed: a consulting expert, a testifying expert, or both. Deciding the type of expert needed is important. The Federal Rules of Civil Procedure provide certain protections for communications between an attorney and any expert.² In contrast, the Hawaii Rules of Civil Procedure³ do not contain the same express protections afforded under the Federal Rules of Civil Procedure. Thus, until a final decision is made as to what role a particular expert will have in a case, the attorney should assume every communication between that expert and anyone (whether it be with the attorney's office, a party to the case, or a third party) will be discoverable along with every other document or note in the expert's file regarding the same.

An attorney should also evaluate the number of experts needed for a case. Experts generally charge for their time on an hourly basis, and thus the number of experts retained will impact a litigation budget. In addition, the more testifying experts an attorney retains in a case, the greater the risk of inconsistencies between the testimony and/or opinions of those experts.

Not every case will require a testifying expert. If the decision is made that a case does not require a testifying expert, an attorney should still evaluate whether a consulting or non-testifying expert is appropriate. A consulting expert, as a testifying expert, can assist the attorney in: defining the critical issues in pursuing a claim or preparing a defense; formulating a written discovery plan; and reviewing and evaluating discovery materials. This type of assistance can greatly reduce the resources the attorney needs to devote to researching scientific, technical, or other specialized issues in a case, as well as reduce the risk that an important issue may be overlooked.

Selecting a testifying expert requires evaluation of not only the expert's knowledge and skills, but also the expert's witness potential. A testifying expert will appear for deposition and/or trial, which means that the opposing party and the trier of fact will evaluate everything about that expert to decide the weight to give to that expert's testimony, including the expert's knowledge, credentials, communication skills, nonverbal communication, demeanor, and overall credibility. That being the case, the attorney needs to decide what type of expert will be most effective and persuasive in a particular case: an expert who is an active practitioner in the field with extensive real-world experience; an academician with impressive teaching and publishing credentials; an expert who derives a substantial portion of his or her income from testifying as a litigation expert; or some other type of expert? In short, in retaining a testifying expert, an attorney must perform the same witness evaluation as the attorney would for any other witness, because the testifying expert witness will face the same hurdles in persuading the trier of fact to understand and agree with his or her testimony and opinions.

Retaining a testifying expert introduces certain risks into a case. An expert who does not effectively stand up to cross-examination before or during trial can significantly and negatively impact a case, especially if the case law requires expert testimony for the issues analyzed by that expert. Expert witnesses generally involve significant cost, which must be considered in evaluating the reasonable and probable...