Expert Witness Litigation Experience: How Much is “Just Right?”


Expert Witness Litigation Experience: How Much is "Just Right?"

Often, multiple potential expert witnesses with the necessary background are available for any particular case. Some of the available experts have extensive experience participating in litigation, either in a consulting role, as testifying witnesses, or both. Others may have little to no experience with the litigation process or a courtroom trial.

When deciding between two otherwise knowledgeable and qualified witnesses, is it wiser to choose the witness with extensive litigation experience or the one who is new to the judicial process? The answer will depend on the particulars of the case, but considering certain key factors can lead to a more thoughtful decision.

Benefits and Drawbacks of Choosing a Highly Experienced Expert

An expert with an extensive history of participation in litigation, including trials, will have developed an understanding of the trial preparation and performance process.

These experts tend to be familiar with confidentiality and expert testimony requirements. Some are well-versed in the requirements for qualifying an expert witness and for admissibility of an expert’s report, particularly if most or all of their service as an expert has taken place within the same jurisdiction.

As a result, attorneys may be able to spend less time preparing an experienced expert to execute the necessary role in the trial process. Fewer revisions of the expert’s report may be required.

On the witness stand, many experts use their past experience to inform and improve their methods of providing testimony. With practice explaining complex topics to juries, these experts can often break down highly technical subject areas into clear, simple explanations that juries and judges can easily grasp.

However, choosing experts with significant past experience can pose challenges as well. For example, many “professional experts” find themselves conflicted out of certain cases, particularly if they have worked extensively within a single court or jurisdiction, or if they focus on a narrow technical area. Opposing counsel may also seize upon an experienced expert’s track record to argue that he or she is a “hired gun” who will repeat whatever the party wants, rather than performing a truly independent analysis.

While these experts have past experience, that experience can pose a challenge. Some experienced experts may tend to adapt their analyses, reports and testimony to the habits they have learned from previous trials rather than providing precisely what the attorney requests for the matter at hand.

Benefits and Drawbacks of Choosing a Less-Experienced Expert

An expert who has no experience with litigation may nonetheless make a fine witness.

Experts without prior litigation experience offer a “clean slate” for attorneys. They come without preconceived notions of how they should prepare an expert report or present themselves at deposition or trial. Since they rely on the attorney to provide guidance, a lawyer who can offer this direction may find that the expert witness performs exactly as the legal team needs.

Inexperienced experts also have the benefit of having spent none of their recent time distracted by other people’s courtroom battles. Because these experts are coming solely from a background in their specific field, they are often well-versed in new and developing practices, processes and methods. In cases involving disputes over the acceptability of certain approaches to a science, trade or art, these experts can often explain exactly how their field handles certain issues – because they live that work every day.

Many inexperienced expert witnesses work as professors or train others in their own field. Although the witness may not have experience translating complex topics to juries, he or she may have extensive experience translating these topics for students or apprentices – a skill that can easily translate to the witness stand.

Often, a new expert can help an attorney avoid opposing counsel’s attempt to paint the expert as hired gun. Since the expert witness doesn’t make a habit of testifying, he or she can more easily be portrayed as a knowledgeable source whose only loyalty is to the facts and specifics of his or her field.

The primary drawback to working with an inexperienced expert witness is time. New experts will need instruction on relevant legal standards and how to comport with them. The legal team may spend more time reviewing drafts of the expert’s report or preparing the expert to provide testimony. Cutting corners on the time spent with an experienced witness, however, can spell disaster if that experience does not provide the foundation required for success in the current case.

Any expert witness should be selected only after research has been done into both the expert’s qualifications and their more intangible qualities, like communication. The best experience level for an expert witness will be the one that fits best within the context of the expert’s qualifications and the context of the case as a whole.

About The Author

Dani Alexis Ryskamp, J.D., is a freelance writer and legal book critic with experience practicing insurance defense, personal injury, medical malpractice law, and criminal defense.