Credibility is a key attribute in an expert witness, every trial lawyer would agree. But how do you gauge a potential expert's credibility? What attributes provide the best predictors of how the expert will measure up in the eyes of a jury?
For Kirkland & Ellis partner Andrew R. McGaan, a lawyer who has tried and won jury and non-jury cases throughout the United States, experience has taught him to look for something other than what he was taught as a young lawyer.
Conventional wisdom teaches lawyers to look for well-credentialed experts with degrees from prestigious schools, honors in their field and experience testifying. That wisdom carries kernels of truth, the Chicago-based McGaan says, but credentials are not at the top of his list.
"Credibility comes first and foremost from having an expert with direct experience in exactly the same problem as you are dealing with in the courtroom – experience in the real world, not as a testifying expert," he explains.
But hands-on experience is only half the equation. The other trait McGaan looks for in an expert is passion about his or her work. "If they have an innate passion for what they do, that comes through in their ability to explain the field to everyday people on the jury who have no background in it and probably don't care about it."
An expert McGaan found with the help of IMS ExpertServices provides a case in point, he says. He was defending a pipe manufacturer in a products liability claim brought by an oil refinery after a large fire forced it to shut down. His defense called for close scrutiny of how the refinery maintained its pipes, responded to the fire and rebuilt in its aftermath.
The expert he sought would have to be thoroughly familiar with the design, maintenance, and construction of an oil refinery. IMS helped him find someone with precisely that experience. He was a petroleum engineer who had spent years running and maintaining refineries and budgeting and overseeing their rebuilding after fires. He had even been president of an oil company that owned a refinery.
There was one problem. He had never testified in court. That worried McGaan, but the veteran trial lawyer weighed the expert's lack of testimonial experience against his track record and passion for his work and made the decision to retain him. He was glad he did.
"While telling the story, whether on direct or cross-exam, it was obvious to everyone that he loved what he did – that he had a natural interest and passion for worrying about refinery problems and repairs," McGaan said.
With an untested expert, his ability to stand up to cross-examination is McGaan's biggest worry, he says. "Experts can get eaten alive on cross, if they don't understand what an artificial dialogue it is."
But in the case of the oil-refinery expert, he proved to be particularly effective when being cross-examined, McGaan recalled. "Every time he was asked any question along the lines of, 'How do you know that?' his answer was, 'Because I've done exactly that.' Even though he was on the witness stand, his physical demeanor remained that of a petroleum engineer who felt most comfortable standing around pipes."
In fact, too much testimonial experience can sometimes be a detriment during cross-examination, McGaan believes, because what comes through to the jury is the expert's courtroom experience, not his passion for the topic.
McGaan draws an analogy to hiring a plumber for your home. "When a plumber comes to your home for the first time, you can quickly tell if he's done this work before and if he has a passion for getting it right."
Jurors look for similar qualities in a trial witness. "The jurors know that the spotlight is on them," McGaan explains. "They look at every witness with the same question, 'Are you someone who is going to help me sort through this problem or not?'"