Selecting Your Expert

AuthorRobert Clifford
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 Reputation
§121.4 Time and Availability
§121.5 Attitude
§121.6 Employee of Party
§121.7 Academic vs. Practical
§121.8 Prior Witness Experience
§121.9 Proximity
§121.10 Age and Health
§121.11 Concurrence with Case Theory
Qualifying and attacking ExpErt WitnEssEs 1-16
§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
1-17 sElEcting your ExpErt §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 nec-
essary 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 reduc-
es 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 pro-
posed expert is qualified so that his or her testimony
will be admitted in evidence, but perhaps more impor-
tantly 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 pres-
ent 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 effective-
ly chosen and presented expert testimony. Virtually
every case in which expert testimony is required pres-
ents 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 testi-
mony and the increase of complex litigation such as
environmental claims, toxic tort litigation, and con-
sumer class actions has expanded the need for expert
testimony. The particular factual and legal circum-
stances 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 fac-
tual 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 shortcom-
ings 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 presenta-
tion 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 tes-
timony 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 pre-
senting 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

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