Attorneys all know that the role of an expert witness in litigation can be crucial; expert testimony can add credibility to arguments, refute the opposing counsel's position, and reinforce the legal team's believability in court. Particularly today, expert testimony has reached a new pinnacle in modern litigation. Given the complexity of the subject matter in most sizable litigation matters, more and more attention is being paid to experts' credibility and persuasiveness at trial.
Too often, law firms relegate finding experts to "search" firms who send over a stack of CVs with the expectation of finding an expert that is "good enough" for a case. Not only is that inefficient, but also problematic. It can create challenges to the reliability of expert testimony if experts are not adequately evaluated (not to mention, create questions on the admissibility of expert testimony given the proposed amendments to Rule 702). Is this a gamble that attorneys can afford to make?
When considering how to represent their clients' best interests, attorneys would be wise to pay close attention to the experts they retain. After all, an expert's reputation, expertise, education, and experience can have a significant impact on the outcome of a case.
Furthermore, consulting with the best experts gives counsel an added opportunity to gain valuable insight into burgeoning markets that can drive a law firm's bottom line. For example, gaming, fintech, telecom, and automotive technology innovations are rapidly advancing; each market's players are engaged in fierce competition in a push to deliver innovation that converges across industries.
With so much at stake, attorneys should pay attention to the quality of experts they retain and put their trust in a company with highly-credentialed academics and industry insiders, and legal professionals who know the challenges of litigation and what it takes to be a successful expert witness.
Here are five factors attorneys should consider when they have an expert witness need:
- Reliable, subject-matter experts –
It's important to know your experts beyond what is highlighted
in their CVs to ensure they are the best fit for a case. Working
with a company dedicated to proactively researching qualified experts in areas where litigation is
likely to ensue, and actively fostering relationships with only the
best experts in their field, will improve the strength of your
expert testimony in a case. The company would have prequalified
experts and can answer questions such as:
- Does the expert's subject knowledge directly relate to the issues of the case, where they can speak intelligently and with authority on the matter?
- Do they have experience testifying, teaching, or public speaking that qualifies them as good communicators on often complex issues?
- Do they have any Daubert challenges or other potential liabilities that should be considered?
- Do they have any conflicts that would preclude them from retention or damage their credibility?
Instead of sending over CVs that broadly meet search criteria, the company focuses on identifying the best experts and recommends a select one or two for each role who are best suited to address the need.
- Skilled professionals who understand the nature of litigation – When it comes to prequalifying experts, having former practicing attorneys, experts, and other legal professionals at the helm can give you a competitive edge. The company you partner with for experts would serve as an extension of your legal team with consultants who know the legal world, understand how to utilize experts for different venues best, and can advise you on the best-suited experts to enhance your case strategy.
- A company with a specific focus on litigation trends – When you need an expert you can trust to understand the issues in emerging areas of litigation, it's critical that you partner with a company that specializes in identifying growing areas of conflict and follows the trends. The company's mission is to anticipate the issues and proactively assemble diverse groups of expert teams who can address them in future litigation.
- Skilled project managers to liaise with – Having a trained professional to manage your expert witness needs for a matter and the relationship with a retained expert is crucial, particularly when the case is complex. Additionally, a project manager, in conjunction with other expert consultants from the company, can provide your legal team with an objective perspective on the need for additional experts to address different angles of your argument.
- An insider's perspective into an area your law firm is looking to explore – Perhaps the most overlooked, yet very impactful, way to gain insight into an industry is through consultation with an expert. The expert can provide a look under the covers at developing issues in trending areas that informs your client acquisition efforts and litigation strategies. The expert can also be tapped for pitches to help clients understand how to stay competitive in their respective spaces.
In summary, attorneys cannot afford to go with experts who are "good enough." More than ever, choosing the right expert is critical to adding credibility to arguments and helping counsel drive opportunities for firms. Having the right partner for the best experts by your side will put attorneys one step ahead of the game.
At WIT, we have redefined the expert witness industry by bringing experts in the highest demand together under one virtual roof. By anticipating major trends in litigation, WIT proactively builds teams consisting of academic and industry experts who have the credentials and experience to address our clients' needs. We focus on areas involving automotive technology, fintech, gaming, and wireless communications, and many of our experts are pioneers in innovative technologies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.