Legal teams invest a lot in locating and preparing the ideal expert witness to support a case, but what makes a perfect expert witness? And how much of that actually rests on the legal team providing a suitable working environment that lives up to the expert’s standards?
When a firm hires an expert to provide the knowledge, support, and experience that can help make a case, the legal professionals assigned to the case are just as responsible as the expert for cultivating a positive and successful business relationship. Here are three things you can do to help ensure your expert witness is set up to succeed and doesn’t tell other fellow experts to run the other way if you come calling.
Get Your “Stuff” Together and Engage as Early as Possible
One of the most valuable resources in working with expert witnesses is time. Experts want to work with attorneys who bring them in early on the case development process, giving the staff, the expert, and the case the time they need to fully develop findings, making you better prepared for your case.
Let’s say you rush the expert selection process because you’re short on time. You can’t review as many expert witnesses as you would like, so you talk to just two. One seems better than the other, so you go with the first. Such a quick decision can introduce risk into the equation because you didn’t invest the time to find the precise expertise you needed. You can end up with an expert that’s just “good enough” – and good enough doesn’t win cases.
Last-minute timelines impact your experts, as well. Even if you’ve secured an excellent witness, he or she may not have enough time to thoroughly investigate and understand the facts of your case, apply the expertise that you’re depending on, and pursue alternative theories and options when necessary. An ill-prepared expert is less effective at best, harmful at worst.
At Expert Consulting Services, Inc. (“ECS”), we encourage attorneys to engage with us early in the expert location process. Don’t wait until you have a perfect case strategy, with all details and facts ironed out, before tracking down the ideal witness. When you work with ECS, you get a team with legal experience that takes the time to understand your case, and can often help you determine what type of expert will be best while you formulate your strategy.
Don’t Shirk! Delegate Effectively
Law is often a team sport, and everyone should benefit from the roster of varying skill. But, no one likes being handed off to a colleague before they have ample face time with the lead attorney. An attorney should know when to work directly with an expert, and what tasks to delegate to staff as appropriate.
ECS understands this delicate balance, so we begin our work by gathering detailed case information from the attorney (or delegated staff member, when appropriate). After we assess your needs, we reach out to our network of experts, identify potential experts that are most appropriate for you, and collect the experts’ CVs, fee schedules, and contact information for your review.
We strongly encourage the attorney to review this information and then speak to the experts directly, so that you can make an informed decision regarding the right expert for your case.
While handing off expert witness selection to someone available but less familiar with your case may save time at first, you can end up paying the price down the line. The process frequently suffers from lack of accountability – someone thought someone else was handling it – which can lead to a failure to follow best case practices and an overall lack of direction. Make sure you know who owns the expert witness process, and arm them with the information they need to manage it successfully.
Let the Expert be the Expert
Expert witnesses do not want to work with overbearing, micro-managing attorneys who don’t let them act as the expert in their subject matter. Blame it on our perfectionism or our control issues, but the attorney should let the expert arrive at his or her own conclusions and encourage the expert to document how they arrived at the end result. You can support the expert by sharing a simple outline of the rules and procedures for expert witness testimony and teaching the importance of being prepared and polished.
Help your expert understand how and when his or her opinions will undergo intense scrutiny and investigation. Teach the expert why juries and judges don’t appreciate defensiveness or evasiveness on the stand. An expert witness needs to spend time thinking about his or her methodology to arriving at well-thought out opinions, and be able to articulate the investigation, analysis, and conclusion.
If you employ these practices at the beginning of your engagement with the expert witness, then he or she will approach the case with a winning mindset. Hopefully, this will set the groundwork for purposeful research and studying of the facts of the case, resulting in a well-prepared expert witness who can clearly and effectively share his or her unbiased findings for the benefit of your client.
Ingrid spent 10 years as a litigation attorney, practicing in the areas of personal injury, professional negligence, product liability, and premises liability, before founding Expert Consulting Services, Inc. (ECS). Ingrid’s philosophy of case development includes establishing strong relationships with the expert witnesses by encouraging open and regular communication and utilizing the expert witnesses to help formulate case strategy.