Federal Rule of Evidence 702 calls for expert witnesses to possess “knowledge, skill, experience, training, or education” in the field in which they will testify as an expert. Acquiring field-specific acumen can be done in a number of ways, from studying to hands-on performance of work in the field.
Attorneys seeking an expert witness often find themselves faced with the choice between an expert whose background is primarily practical and one whose background is primarily academic. Each type of expert offers certain strengths and weaknesses, and understanding these differences can help you select the most advantageous expert for your case.
Academic experts most often include professors who research, publish and/or lecture in their field of expertise.
Because their work immerses them deeply in a subject, these experts often have the necessary insight and perspective to explain why certain methods or frameworks are preferred when it comes to testing or safety. When questions of reliability as to principles and methods arise, an academic expert can often provide the context needed to establish that his or her own method is reliable or that an opposing expert’s method is not.
Academic experts who regularly teach courses may also have developed remarkable skill at breaking down complex topics for a lay audience. These academic experts often do well in front of juries because they are familiar with effective teaching strategies. Since this trait is not universal among academic experts, however, it’s important to evaluate an expert’s presentation skills before retaining him or her to testify.
One major downside to choosing an academic expert is that experts may have little or no litigation experience unless serving as an expert witness has become part of their professional work. When academic experts do testify regularly, legal teams will need to stay alert for potential conflicts, as well as to the likelihood that opposing counsel will attempt to paint the expert as a “hired gun” whose primary purpose is to regurgitate whatever he or she was hired to say.
Practicing experts typically work in the field of their expertise. They may have little connection to the theories and research produced by academic experts in the field, instead offering a wealth of experience in concrete, real-world instances of the field in question.
Practicing experts often fare well in cases that focus on technical issues, rather than on issues of methodology or reliability. For instance, a practicing expert in engineering may be able to articulate why a defective product failed more clearly than an academic expert. Because many practicing experts work regularly with non-experts, such as customers or executives, they may also have developed the ability to explain what they do in plain language – although, as with any expert, this ability should be evaluated before the expert is retained.
Practicing experts often come with experience in litigation, which reduces their “learning curve” in the case before them. Because their work is focused on doing rather than researching or teaching, these experts may benefit from being reminded that their primary role is to educate: They are there to help the judge and jury understand why their analysis is correct.
The Best of Both Worlds
The rise of adjunct faculty in many US colleges and universities has expanded the number of available academic experts who spend part of their day in hands-on work in their field. The increased number of experts who both study and practice has, in turn, made it easier for attorneys to embrace the best of both worlds and choose an expert with both academic and practical experience.
An expert with a foot in both worlds may greatly benefit a legal team that needs both insights into methodologies and practical wisdom. It is important, however, to choose a qualified expert who has the understanding and resources to execute the work the case requires — whether it is to advise the legal team, create a report, or testify in a deposition or at trial.
Regardless of which type of expert your legal team chooses, it is essential to provide enough time and background information for the expert to prepare his or her opinions, reports and other necessary information. Both academics and practicing experts often face busy schedules with much of their time is devoted to their work. Creating a schedule well in advance, upon which both parties can agree, will help the relationship proceed as smoothly as possible.