When it comes to hiring an expert, the devil is in the details. Whether it’s a patent infringement case, breach of contract, or other complex litigation, doing your homework is essential when pinning the outcome of your case on an expert witness.
Experienced attorneys understand the importance of measuring a potential expert’s competencies and credibility to provide expert testimony. Further, they have learned to thoroughly examine a candidate’s experience, education, references, prior testimony and writings to identify weaknesses or liabilities.
However, attorneys in the social age must also properly vet a candidate’s social and digital reputation to avoid any potential landmines. Expert blogs, Facebook and Twitter profiles, YouTube and about 400 other social sites, not to mention the endless professional and non-professional forums and comment boards, all could contain damaging content posted by a candidate. With current estimates that more than 157 million blogs are operating in the world, chances are your expert has commented on or posted to something that must be reviewed. Attorneys, or staff, must invest quality time searching these platforms to mitigate any potential danger.
According to an interview with Howard Suskin, an experienced Chicago litigator, doing your homework also “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.”
Attorneys, however, will sometimes need to go beyond a simple paper chase in order to get a complete picture. Face-to-face interviews are great ways of flushing out additional concerns or “to confirm that the expert can explain the topic clearly and has the demeanor to be effective in the courtroom,” according to Suskin. How an expert witness appears and behaves in court, is sometimes just as important as what he or she says. Juries can fixate, qualify or dismiss an expert based upon preformed notions of an individual. Attorneys should act to minimize unwanted characteristics while maximizing desirable qualities when considering hiring an expert.
Some attorneys find it useful to conduct interviews with multiple candidates before hiring. While this is purely a personal preference, an attorney should be mindful of the potential ethical issues of “locking out” experts by intentionally disclosing case details before retention. Ideally, lawyers should interview candidates until they are “satisfied with the expert’s credentials, background and demeanor,” according to the interview with Suskin.
Doing your homework when searching for an expert witness is a challenge, but could prove to be the difference between winning and losing.