Commentary: Selecting a witness who is truly an expert

Most lawyers spend considerable time researching an opposing expert before cross-examining the expert at a deposition or during trial. The same investigative intensity is often lacking when it comes to selecting an expert to testify on behalf of a client.

Lawyers frequently are easily impressed by a potential expert's curriculum vitae and willingness to agree with the theory of your case. However, if the same zeal is used in investigating an expert as is utilized in preparing for cross examination, your expert selection may be beyond reproach.

The selection process of an expert normally begins with a review of several curriculum vitae or resumes from potential experts. Generally, the more lengthy the curriculum vitae, the more impressed the attorney is. If a potential expert writes extensively in industry or trade journals and has testified for other lawyers, the lawyer is more inclined to select that expert than to work with an expert who is new to the field of consulting and testifying. However, as this article will discuss, sometimes the best expert witnesses are those who have not testified before.

The information listed on the curriculum vitae should be verified. One medical expert from Wisconsin, who makes his living testifying against doctors and hospitals in the St. Louis area, and is well-known to medical malpractice attorneys in St. Louis, lists seven different Universities and medical schools with which he is affiliated. However, calls to the different Universities and medical schools to determine if the expert is in fact affiliated with the respective institutions revealed that five of the seven institutions have a process by which a doctor can mail in a form to be listed as an adjunct professor.

This expert admitted during his deposition that he has never taught a course at the institutions or treated a patient at the hospitals listed on his resume. He had not even visited the campus of the institutions which he identified as being affiliated with. In fact, the expert did not even know which state one of the institutions was in. You can guard against this embellishment of credentials problem by verifying even the most basic information listed on the resume.

When reading the expert's list of publications, you need to determine if the publications are widely used or relied upon by others in the field. Ask if any article or book written by the expert has ever been cited as authoritative by any federal or state court. For those books which are industry or trade publications, ask the expert how many publications were actually sold. The published book on the expert's credenza may look impressive, but if the opposing counsel elicits testimony during the deposition that less than 50 people actually bought the book, you may not be displaying it to the jury as proudly at trial. It is important to ask the expert what materials he or she maintains in his library - including those which the expert regards as authoritative. Determine whether the expert has any materials in his library or research bank that contains opinions contrary to those that you wish the expert to express in your case.

If the expert has been fired from a previous job or had a bad experience with a former employer in the field you want him to testify - proceed with caution.

During the course of preparing for the cross examination of an expert, most lawyers will call to verify employment and ask questions about the expert's work history. Determine if the expert's professional licenses have ever been suspended or revoked. Verify that the potential expert has achieved the highest designation in his field or the highest educational degree offered. Has the expert ever applied for a membership in any honorary societies and been denied?

The manner in which an expert advertises his services is often cannon fodder for cross examination. You want the expert to show you all of his current advertisements and identify all previous advertisements, including those in all legal magazines or publications. Ask the expert how much money he makes from litigation or consulting work with attorneys versus other professional work in the field.

After you have examined and verified the information on the expert's curriculum vitae, you will want to visit the website of the expert. Most experts who testify extensively maintain websites which boast the credentials of the experts and contain promotional material which may be exaggerated or presented in such a fashion that the opposing lawyer can make the expert look foolish on cross examination.

During your interview with the expert, you will want to spend considerable time discussing his testimonial history. Obviously, you do not want to hire an expert who has given a contradictory opinion in a similar case. Most litigation attorneys prefer an expert who testifies 50 percent for the plaintiff and 50 percent for the defendant. To have a record which consistently criticizes an industry or defends an industry's practices may lead one to believe that the expert is biased. Ask the expert if anything embarrassing has ever come out during any of his previous depositions or trials. The expert should be able to identify for you any cases in which his expertise or opinions have been challenged by way of a Daubert motion. Identify cases in which the expert felt a rigorous cross examination was conducted concerning his background qualifications so that you can obtain a copy of that transcript and review it before retaining the expert.

Does the expert practice what he preaches? If an expert is testifying concerning the effectiveness of a product, obvious questions to ask include whether the expert has ever designed a similar product or had any involvement in working with the product. Most experts who make a living by testifying are willing to render opinions in areas in which they are not qualified. A very simple question along the lines of, Give me an example in your work history where you have actually done what you are now criticizing the other side for not doing, should be easily answered by the expert.

Question the expert regarding other cases which he has recently rejected. It is important for the expert to be able to identify cases he has rejected because he did not believe in the theory of the case. You do not want to hire an expert who has accepted and rendered an opinion in every case presented to him.

When interviewing a potential expert, it is important to ask whether the expert is deemed to be an expert by others in his field. Many experts are taken aback by such a question. Nevertheless, it is important to have an expert identify other prominent professionals in his field that would consider him or her to be an expert. Simply having other lawyers that the expert has worked for comment on the witness' ability to testify is insufficient. For example, if an expert witness is giving an opinion in the field of insurance claims handling - the expert should be able to identify other insurance claims professionals who have worked with or for the expert and can attest to his excellence in handling claims. This would include former colleagues, industry officials or others who have achieved prominence in the field. Without this recognition by others in the industry you should begin your search for another expert. Likewise, have your potential expert identify other experts in the field in which the expert contemplates testifying. If the expert cannot easily identify a number of individuals who are also experts in the field, then that may well be a tell tale sign that the expert is trying to testify about a field or industry with which he is basically unfamiliar.

After you have fully researched the potential expert witness and interviewed him about his opinions concerning your case, the most overlooked and important question that needs to be asked is whether the expert can devote sufficient time and energy to your case. Many professional experts are involved in a number of cases that are proceeding simultaneously. Professors at Universities have class schedules and are often trying to publish materials by certain deadline dates. You need to make sure that your expert can spend the time necessary to work on your case.

Discuss the expert's billing rates. Many believe the experts should charge the same for working on the case as he does to give deposition to opposing counsel. If the expert charges a higher rate to spend time giving deposition testimony to opposing counsel, that will certainly be pointed out at trial. Understand from the beginning of your relationship with the expert what his or her practice and procedure is with regard to draft reports. If you want to present the expert as one who gives an independent assessment of the issues in your case then you do not want to have draft reports contained in the expert's file on which you have had input or suggestions concerning the content or opinions expressed in the report.

Additionally, make sure the expert has all the materials he or she needs before he completes his work on the case and expresses his opinion. Otherwise, you will feel very uncomfortable when you produce the expert for deposition and he testifies that he would like to have seen other materials which he deemed to be important and that upon review of those materials, his opinion may well change.

Finally, many defense lawyers throughout the country use IDEX, Inc. as a research tool in evaluating expert witnesses. Referred to by Forbes Magazine as The Secret Weapon of the Defense Bar, IDEX exclusively serves defense attorneys, insurance claims staff and corporate counsel in gathering valuable information about the opposition's expert witnesses. IDEX searches provide defense attorneys with the expert's testimonial history, abstract articles written by the expert, headings and newspaper articles naming the expert and the relevant disciplinary actions. The testimony search includes both deposition testimony given in cases that have settled, as well as trial testimony. The search provides you with the name, address and telephone number of attorneys who have cross examined the expert so that you can obtain depositions and/or trial testimony previously given by the expert.

Selecting an expert is a time consuming task and not nearly as enjoyable as digging up dirt on the opposing expert. However, utilizing some of the above procedures in researching your potential experts will hopefully result in your retention of a witness who is truly an expert.

John G. Schultz is a principal in the firm of Franke & Schultz, P.C., which specializes in insurance defense litigation and has offices in Kansas City, Springfield and Columbia.

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