Selecting Your Expert

• Author: David J. Galluzzo
• Pages: 19-90

1-1

SELECTING

YOUR EXPERT

CHAPTER 1

SELECTING YOUR EXPERT

§100 Preliminary Considerations

§110 Types of Experts

§120 Attributes of the Expert

§130 Locating the Expert

§140 Initial Conference

§150 Expert Retention and Compensation

§160 Conflict of Interest

§170 Liability of Expert for Negligence

§180 Court Appointed Experts

§100 Preliminary Considerations

§101 When You Should Retain an Expert

§101.1 Required by Law

§101.2 Required by Facts

§101.3 To Assist the Jury

§101.4 Tactical Considerations

§101.5 Distinction Between Expert and Lay Opinion

§102 Purposes of the Expert

§102.1 Experts as Jury Consultants

§102.1.1 Experts on Jury Composition

§102.2 Experts to Establish Causation

§110 Types of Experts

§111 In General

§120 Attributes of the Expert

§121 In General

§121.1 Communicative Skills

§121.2 Honesty

§121.3 Body Language

§121.4 Reputation

§121.5 Time and Availability

§121.6 Attitude

§121.7 Employee of Party

§121.8 Academic vs. Practical

§121.9 Prior Witness Experience

§121.10 Proximity

§121.11 Age and Health

§121.12 Concurrence With Case Theory

§130 Locating the Expert

§131 Investigating an Expert’s Credentials

QUALIFYING AND ATTACKING EXPERT WITNESSES 1-2

SELECTING

YOUR EXPERT

§140 Initial Conference

§140.1 Selection of Your Expert

§150 Expert Retention and Compensation

§151 Controlling Expert Witness Costs

§152 Using In-House Counsel

§153 Avoiding Expert Costs

§154 Use Public Records and Government Reports

§155 Written Agreements with Experts

Sample: Expert Engagement Letter

§156 Maintaining Expert Confidentiality

§160 Conflict of Interest

§160.1 Potential Conflict of Interest During the Selection Process

§170 Liability of Expert for Negligence

§171 Expert’s Claim for Equitable Indemnity

§180 Court Appointed Experts

§180.1 Technical Advisors

Sample: Motion to Appoint Independent Expert

Sample: Order Appointing Expert

§181 Primary Jurisdiction Doctrine

1-3 SELECTING YOUR EXPERT §100

SELECTING

YOUR EXPERT

§100 PRELIMINARY CONSIDERATIONS

Because selecting an expert can be crucial to the success of the case, before selecting an expert there are

preliminary concerns to address. First, is it necessary or advantageous to retain an expert in order to successfully

prosecute or defend the case? Attorneys frequently overuse expert testimony. Experts are expensive and eliminating

unnecessary experts reduces not only the direct cost of the expert’s fees, but the cost of the lawyer’s time in meeting

with the expert and preparing motions and reports. Consider whether the expert’s testimony will be essential to the

outcome of the case or if the expert’s testimony will simply relate to a relatively unimportant peripheral issue. By

eliminating insignificant experts it may emphasize the opinion of the remaining experts who are critical to the case.

Second, determine not only whether the proposed expert is qualified so that his or her testimony will be

admitted in evidence, but perhaps more importantly whether the expert has the ability to persuade the trier of fact

as to the validity of his or her opinion. Counsel should carefully consider the attributes that the proposed expert

should possess to effectively present his or her opinion.

The outcome of the so-called “battle of the experts” frequently determines the resolution of the trial and the

selection of an effective expert may be crucial to the outcome. Whether a case is won or lost often is determined

by which side has most effectively chosen and presented expert testimony. Virtually every case in which expert

testimony is required presents varying and distinctive factual situations. One of the distinctive characteristics of

recent trials is the extensive reliance upon expert testimony to persuade the trier of fact to reach a desired result. The

rules of evidence have relaxed the constraints on expert testimony and the increase of complex litigation such as

environmental claims, toxic tort litigation, and consumer class actions has expanded the need for expert testimony.

The particular factual and legal circumstances of each case must be analyzed to determine what the presentation of

expert testimony is intended to achieve. Counsel should consider the necessity for expert testimony and the purposes

for the retention of an expert. Counsel should review carefully the theory of the case and how it can be supported by

effective expert testimony and how an expert can reduce the effectiveness of opposing theories.

Ordinarily, counsel cannot choose who the factual witnesses will be; factual witnesses are dictated by the

people who happened to be involved. Factual witnesses ordinarily must have personal knowledge of the facts.

However, percipient factual witnesses may lack the ability to communicate effectively, they may be biased,

inconsistent or forgetful and there is very little that counsel can do about the shortcomings of factual witnesses.

On the other hand, experts do not have to have personal knowledge of the facts and consequently the number of

available experts is immensely larger than the number of available factual witnesses. Consequently, the selection

and presentation of experts is one area where counsel has a degree of control of who to present at trial.

The selection process should encompass more than an examination of the expertise, experience, and

reputation of a potential expert. An expert should be independent in arriving at his or her opinion, and should

not be pliable and willing to accommodate counsel. The expert’s presentation and teaching skills are usually of

primary importance. The expert should be able to explain complicated information clearly without appearing to

talk down to the trier of fact.

COMMENT

Federal Rule of Evidence 702 provides that the purpose of expert testimony is “to assist the trier of fact” to

understand the evidence or to determine a fact in issue. State rules similarly provide that expert testimony may

be offered if it would “assist the trier of fact.” See, e.g., California Evid. Code §801. However, as a practical

matter these provisions do not go far enough. Attorneys offering an expert witness want the expert to assist the

trier of fact to determine the issue in favor of the party offering the expert. An expert is not retained and presented

because of his or her detachment and neutrality; the expert is retained and presented to persuade the trier of fact

to determine the facts consistent with the theories of the attorney presenting the expert. Although the expert has

an aura of neutrality, the role of the expert is not to be a neutral observer but a subtle advocate for the party who

has retained him or her.

In federal court counsel must consider the effect of Daubert v. Merrill-Dow Pharmaceuticals, Inc. 113 S.Ct.

2786, 125 L. Ed. 2d 469 (1993) and Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). In addition to federal

litigation, many state courts also follow the requirements set forth in Daubert. Federal Rule of Evidence 702

sets forth the reliability requirements of Daubert. A witness qualified as an expert may testify in the form of an