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Once you’ve done the mental legwork and have candidates to consider as an expert witness, how do you choose the best one? Several considerations may influence your final choice.  Verifying licensure, education, and employment history is essential, but other factors that may significantly influence jurors and judges must also be assessed.

Prior Expert Witness Litigation Work

Experience

Most attorneys prefer experts to have some litigation experience under their belts, but there is no “just right” amount.  An expert with decades of experience in hundreds of cases may be seen as a “hired gun” who will say whatever the hiring attorneys want her to say. Conversely, experts with minimal experience may lack familiarity with deposition or courtroom protocols or lack appreciation of the tactics employed by opposing attorneys, leading to damaging admissions, responses beyond the scope of the questions, and testimony outside the witness’ expertise. And finally, make sure your expert understands the “lay of the land” with the timing and pace of trials. The judge determines the schedule, and an expert who cannot be reasonably flexible to rearrange her calendar if needed will not be of use.

Retention

For experts who have a history of consulting and testifying, a propensity to work only for the plaintiff or only the defense may be construed as biased. An expert who has worked on cases for both sides, however, even if it’s one side more than the other, may eliminate the bias perception.

Income / Compensation

Expert witnesses frequently command substantial hourly fees, sometimes in the neighborhood of $1,000 per hour, and juries may perceive rates in the higher ranges as attempts to take financial advantage of the legal system.

  • A high hourly rate may create the perception that an expert is primarily motivated by financial gain, potentially affecting their credibility. 
  • Conversely, some jurors may view experts who charge higher rates as more credible or authoritative compared to those with lower fees.
  • The proportion of total income from expert witness work may also matter. For example, if 70% of an expert’s total income is derived from expert witness work, jurors may view this as suspicious and discount the expert’s credibility.

Home Base

An expert can testify nationwide but where her “hometown” is located may matter.

  • It’s often better to choose experts in the state where the case is located or adjoining states, where possible.  For example, a Mississippi state court jury may put more value on testimony from a Tennessee expert than an expert from  New England with a strong Boston accent.
  • If the specialty is rare, however, there may only be a few qualified experts nationwide, making location less important.

Personal Litigation as a Party

Has your potential expert been a named defendant in a suit for malpractice, failure to warn, products liability, employment, or other legal matter? Research these matters carefully, noting specifically if any remain open.  Also be on the lookout for anything out of the ordinary, like charges or crimes, other than traffic matters, and large tax liens that may affect credibility.

  • Check Lexis, Westlaw, and Bloomberg databases for this kind of information.
    Also check the Clerks of Court in the states of residence your expert has lived. Some states have quick and easy searches across the whole state, while others are more complicated, requiring searches on individual counties, registration, and fees.

Social Media Presence / Digital Footprint

Given the permanence of online content, it is important to carefully assess an expert’s social media presence and overall digital footprint. In addition to reviewing prominent platforms such as Facebook, Twitter/X, Instagram, YouTube, and LinkedIn, broader search engines like Google and Bing should be employed to identify any other information that may be potentially harmful. The nature of content shared, posted, or otherwise “endorsed” by the expert can provide insights into her professional demeanor, personal beliefs, and political stance.

There is no formula for finding the right expert for your case, and you may speak with several possible candidates before homing in on the best fit. After ensuring all bases are covered, select the one you will work with and relate to the best in your case.

Womble Bond Dickinson’s Medical and Scientific Solutions Team connects clients with top medical and scientific experts, gathers the most compelling evidence to challenge the credibility of opposing experts, and crafts winning expert witness strategies.

 

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