1-3 SYE §100
§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.
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.
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