Expert witnesses often play a critical role in legal proceedings. From formulating your argument to going to trial, expert testimony can provide the information and insight necessary to make or break a case.
Why, then, do we often procrastinate, delegate, or simply rush the process of locating and selecting an exceptional expert witness? Yes, it’s one more thing to do, but taking the time to find the right expert is an investment that pays off.
Start sourcing experts more effectively by following these five guidelines:
1. Engage early.
Rushing the expert selection process introduces all kinds of risk into the equation. When you’re short on time, it’s difficult to find the precise expertise that you need, when, where, and how you need it (not to mention at the right price.) As a result, 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 investigate and understand the facts of your case, apply the expertise that you’re depending on, and pursue alternative theories and options if/when necessary. An ill-prepared expert is less effective at best, harmful at worst.
Some legal teams are hesitant to engage in the expert location process early because they feel they need a perfect case strategy, with all details and facts ironed out, before tracking down the ideal witness. If you work with a location service that has a team with legal experience and takes the time to understand your case, they can often help you determine what type of expert will be best while you formulate your strategy.
Approach the task of sourcing experts as a book-end to your client intake process. When you or your professional staff retain a client, start thinking about experts that you may need to use for your case. This will become second nature over time, but investing in educating your team about how to proactively plan for expert needs, and working with a location partner that is available to support the process from the beginning, will be worth it in the end.
2. Don’t source the wrong expert.
Sometimes you don’t know what you don’t know. Especially in technical situations, such as medical malpractice suits, you may not have the knowledge or training required to determine the best expert for your case. For instance, a client at ECS once spent time searching and approached us looking for an ear, nose, and throat (ENT) specialist, but once we reviewed their case, we determined a neurologist was actually required.
Sometimes there are cases that delve into uncommon territory or require a unique expert that can’t be identified by special degrees or certifications. We’ve had clients come to us with all kinds of seemingly off-the-wall requests, such as a porta potty expert and someone with intimate knowledge of rock climbing walls.
Take a step back and look at what you need to prove and the high level legal questions that will get you there, especially those that will be posed to the court. What you think is material may not carry as much weight if the expert is not well-suited for your case.
3. Don’t delegate responsibility to someone who doesn’t know the case.
Law is often a team sport, to everyone’s benefit. But 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 case best 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.
4. Do not simply rely on a standard online database.
The Internet has significantly streamlined the process of finding an expert witness. Plug in your requirements, and a database spits out a list of matching results. Easy, right?
Not so fast. Running with a list of experts that is provided by an automated database can actually end up being very time consuming, and sometimes even dangerous to your case. Many expert witness websites simply pull from a pile of data that was provided by the “experts” themselves, and it is hard to determine whether the information is reliable or current.
There is no doubt that online solutions for expert witnesses can be great, but look for one that goes beyond data to provide an end-to-end, human-powered solution for finding the perfect expert for your case. Some of these services are even free of charge for the attorneys.
5. Really vet the expert.
This sounds like a no-brainer, but falls through the cracks surprisingly often. Without thorough vetting, your expert becomes a potential liability. Undisclosed background information can lead to surprises in and out of court, under the questioning of the opposition or media. Even worse, an “expert” who’s not really an expert can not only fail to provide value – he or she can actively damage your case and reputation.
A great expert will have a portfolio of their credentials and gladly share it with you. Start there, follow up with Google, and check references, no matter how concrete they appear. Complete the process with a formal background check and an interview to ensure every base is covered.
As mentioned, many location services rely on the experts to proactively keep their information up to date, meaning you may get a list of experts that no longer qualify or have let a license expire. Make sure you put in the appropriate time to verify the expert’s qualifications or work with a location service that keeps their expert information up to date and verifies it at least twice a year.
Experts can often be the lynchpin in successfully presenting a case. Locating the best expert for your needs should be given the same priority and attention to detail as the other crucial aspects of your preparation for litigation.
About the Author
Ingrid Vinci spent ten 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.