Selecting Your Expert
| Author | David J. Galluzzo/Robert Clifford |
| Pages | 17-86 |
1-1
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 Compensation of Your Expert
§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
QAEW 1-2
§130 Locating the Expert
§131 Investigating an Expert’s Credentials
§140 Initial Conference
§140.1 Selection of Your Expert
§150 Compensation of Your Expert
§150.1 Written Agreement With Expert
§151 Control of Expert Witness Costs
§151.1 Utilizing In-House Counsel
§152 Avoiding Incurring Costs of Experts
§152.1 Use Public Records, Government Reports
§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 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.
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
Co. v. Carmichael, 119 S.Ct. 1167 (1999). In addition
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