Before Hiring an Expert, Do Your Homework

By Robert Ambrogi Esq
Ask Jenner & Block partner Howard S. Suskin to sum up his advice on selecting an expert and he answers without hesitation: “Do your homework.”

“You want to get as much information as you can to satisfy yourself that the person you’re thinking about using has the competency and credibility to serve as an expert witness,” Suskin says.

The veteran Chicago litigator knows what he is talking about. He is co-chair of his firm’s class-action litigation and securities litigation practice groups and a member of its arbitration, business litigation and professional-liability litigation practices. Among his many credentials, he is co-chair of the Class and Derivative Actions Subcommittee of the ABA Securities Law Committee and chair of the Chicago Bar Association’s Bench & Bar Committee.

For Suskin, doing his homework means a combination of steps. He often starts with referrals from other lawyers or from a search firm such as IMS Expert Services. Once he identifies potential experts, he checks their references, researches them online and reviews available transcripts of prior testimony.

“It involves a lot of leg work to make certain the expert knows about the subject and to determine whether the expert has previously spoken on the record in ways that might impeach him,” he says.

Because much of Suskin’s practice is securities litigation, he frequently uses expert witnesses to explain industry customs and practices to judges, juries, or arbitrators. “Often they have not encountered the issue before; they have no context or frame of reference,” he explains. “They need to hear from someone who can talk generally about industry customs and practices.”

He also uses experts in the context of damages analysis in a securities case. “You need an expert who can break down the numbers and explain why the analysis is correct and consistent with the law.”

Once he has found an expert who has the right combination of credentials and experience, Suskin’s next step is always a face-to-face interview. In the interview, he is looking to confirm that the expert can explain the topic clearly and has the demeanor to be effective in the courtroom.

While some lawyers prefer to interview multiple experts before deciding on one, Suskin sees no need for a hard-and-fast rule. After he researches and interviews the expert; if he is satisfied with the expert’s credentials, background, and demeanor, he retains him.

With the expert on board, Suskin’s next priority is preparing the expert to testify. For him, that means ensuring that the expert fully understands the case. “I want to make sure that the expert is not blindsided. … I encourage the expert to take the additional time to understand the broader context in which his testimony will fit. The expert needs to understand the big picture.”

If the expert is able to see how his piece fits in to the case as a whole, he will do a better job explaining his testimony, Suskin believes. “Often experts don’t have an overall understanding and, because of that, they can be made to look somewhat less credible.”

In addition to wanting the expert to understand the case fully, Suskin wants an expert to provide him feedback freely. “I like experts who are proactive. I encourage an expert to share any views or concerns about anything they come across. If they see something that does not appear supportable or credible, I want to hear that.”

This kind of openness strengthens the expert’s testimony as well as the case overall, Suskin suggests.

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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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