Finding the right expert witness can be an involved process with several moving parts. An expert’s unique specialization, credentials, credibility, personality, litigation experience, and communication style are all factors that need to be considered when choosing the right expert witness for personal injury and medical malpractice cases. However, there are a number of valuable strategies that can make the entire process of working with an expert witness smoother. We interviewed three successful attorneys popular on social media to get some insight about some of the subtle nuances and practical realities of working with expert witnesses to get the most real, down to earth tips to help you get the most value out of your expert’s testimony – and ultimately to win your case.
1. Know what kind of expert you need
There are a number of different kinds of experts that can be retained in a given case, and all have their own specialties. Knowing what kind of expert you need is the first step towards finding the best expert for your specific case. Million-dollar verdict winning attorney Ron V. Miller Jr. (Miller & Zois, LLC – @RonaldVMillerJr) says that “high-stakes litigation or not, the kind of uniquely situated expert you need will always depend on the facts of the case. The difficulty is that sometimes, looking for an expert can be like looking for a needle in a haystack. Narrowing down the class of experts you may need in your case is a good step towards finding the right witness.” Likewise, attorney Anthony Castelli explains that “sometimes the exact expert isn’t the easiest to find. Let’s say you have a case involving an exploding tire: experts exist on this subject, different than just a specialist in tire types, or perhaps even a mechanical engineer who is specifically familiar with exploding tires.” In many instances, experts in similar fields have overlapping knowledge, so it helps to know the kind of expertise you need to best explain some specific aspect of your case to a fact-finder.
2. Thoroughly research your expert
Given today’s easy access to information, gathering some preliminary data about a potential expert witness is more important than ever. “I look my expert witnesses up on everything, anywhere the expert may be mentioned. In one case, we found a video of the opposing expert witness on YouTube making statements contradictory to those in his testimony. That kind of impeachment material can be very damaging” says Ron Miller Jr., who specializes in medical malpractice cases. All of the attorneys we interviewed also noted that asking other attorneys in close professional circles is a good and easy way to gain some initial insight about some potential expert witnesses. According to Mr. Miller, this kind of outreach “gives you an opportunity to ask other attorneys about their experience working with the expert witness such as how they performed at trial and what their personalities are like. That’s the kind of important information you can’t get from a CV.” Still, a thorough review of an expert’s credentials can be a time-consuming process, and attorneys working with multiple experts will quickly find that the amount of back-and-forth required makes third-party management of this process valuable.
3. Look for publications
Of the many ways to learn about an expert, all of the attorneys we spoke with specifically mentioned looking for publications written by potential experts. Attorney Kevin J. Pflug (Seigel Capozzi – @kevinpflug) shares a past employment experience to demonstrate this point: “I was responsible for thoroughly researching an expert witness’ written publications to see if the expert has made any contradictory statements or findings that could be used to hurt the credibility of their testimony.” Ron Miller Jr. says that “when looking for an expert on a particular subject, you want to start by seeing who’s writing about it.” Looking at an expert’s written works also allows you to see what kind of response it has generated, whether it has received scholarly criticism and how it was received in the scientific community at large. However, while this is a valuable part of finding a great expert, it is another process that takes a significant amount of time to get right.
4. Look for an expert that has experience
The attorneys we interviewed all agree that a good expert will have some balance of technical knowledge, practical, real-world experience in their field, and at least some exposure to the litigation process. “One of the most important things for an expert to have is real-life experience in their field” says Anthony Castelli. Ron Miller Jr. offers some interesting insight as well: “There isn’t always the ‘perfect expert.’ There are always some trade-offs and they can often be in the area of litigation experience. You also have to consider the parties and facts in your specific case – these can influence what kind of litigation experience the ideal expert would have.”
However, attorney Kevin Pflug cautions against experts who may have too much litigation experience. “You have to be careful when looking for an expert with too much litigation experience. Sometimes the jury can perceive that expert as a ‘hired gun’ more than a neutral witness and this will definitely hurt an expert’s credibility.” An ideal expert will have some balance of these types of experiences, and retaining the right expert requires judging them according to a wide range of variables.
5. Choose the expert that can best explain difficult concepts
An expert’s job is – first and foremost – to teach the jury about a technical or scientific matter that they need to understand in order determine the outcome of a case “The expert that is going to be able to explain difficult or complex matters to a jury in a concise and coherent way is the expert that you want” says attorney Anthony Castelli (Law Office of Anthony D. Castelli – @castellilaw). Mr. Pflug suggests “When choosing an expert, it is key that the expert be able to help the jury get a handle on some particular subject. A good way to get a sense of how well your expert can do this is just to simply ask an expert to explain something to you in a way they would explain it to a juror” Since an expert’s primary purpose is to educate the jury, the expert must know how to describe complex scientific issues to a group of people who may have no experience with the subject prior to the expert’s testimony. Ron Miller Jr. offers a good tip: “when gathering information about an expert and trying to figure out how such an expert’s testimony can be helpful to a jury, the best approach is to ask yourself ‘what problem am I solving by calling this witness to the stand? What am I trying to show and what is my goal in presenting this expert’s testimony?”
6. Look for an expert with credibility
“Credibility is the most important thing when it comes to expert witnesses” insists Kevin Pflug. “There are two things that make an ideal expert witness: 1) ‘likeability’, and 2) ‘gravitas’- meaning a necessary degree of seriousness.” Mr. Pflug further notes that having an expert with the best credentials could mean little if the expert is not able to leave an impression on the jury. The jury needs to find the witness credible, and sometimes attorneys become accustomed to viewing the expert through the lens of a lawyer instead of a juror. After working with experts so often, attorneys can sometimes get used to dealing with these types of individuals, for example becoming familiar with industry terminology, making it harder to remember that jurors are not as similarly exposed to expert witnesses, or the knowledge they have to offer. Kevin Pflug says there’s an element of “gut instinct” involved in determining whether an expert is credible, and whether a jury will find the expert to be credible as well. Ron Miller Jr. tells us that “it’s important to talk to different experts- the process isn’t simply linear, and much of it depends on the expert witness and their particular specialization. Some experts can be more approachable than others, it’s something you have to explore in the beginning.”
Ron Miller Jr. says, in personal injury cases, his first choice is to call the treating physicians as expert witnesses. “Jurors tend to find the treating physician as inherently more credible and generally see these experts as more neutral-perhaps because of their initial involvement in treating the plaintiff, they appear less likely to have any stake in the outcome of the litigation.” However in contrast Mr. Miller Jr. explains that in medical malpractice cases it can be quite difficult to find an expert witness to testify against a medical professional in the same community. “Especially in the smaller jurisdictions, these individuals may even be colleagues or otherwise personally familiar with each other and it tends to deter potential experts from testifying in medical malpractice cases.” In these instances Ron Miller Jr. describes having to find experts from other jurisdictions where they don’t necessarily feel connected to the local medical community. This can be a very difficult process for attorneys to undertake on their own, due to the attorney’s unfamiliarity with these institutions, the time needed to contact doctors with very busy schedules, and the diligence needed to clear these experts of prior malpractice.
7. Make sure your witness is well-informed
According to Anthony Castelli, “an expert is only as good as the information he is given. One of the most important things about working with expert witnesses is to make sure the expert has all the information he or she needs to formulate a sound opinion.” For example, in personal injury cases when the treating physician is the expert witness, Mr. Castelli says “it’s good practice to always make sure the physician did his or her due diligence and has explored all of the patient’s relevant medical history. This is to make sure that the patient has no past complaints about a medical issue that is now being attributed to the faulty product or device in a litigation.” Mr. Castelli points out that a treating physician’s medical opinions are largely based on what the patient tells them about their symptoms, so it is extremely important to make sure your expert witness is well-informed. Furthermore, it is better to be cautious and avoid making assumptions about what kinds of facts are irrelevant for the expert to form their opinion. The better practice, Ron Miller Jr. agrees, is to give the expert all the information available so they can (using their expertise) determine what is needed to arrive at a conclusion to a “reasonable degree of medical certainty.” “More importantly, the expert cannot appear biased towards either side- the goal of an expert should be to win the battle between the two experts, since the other side will have an expert who will testify to the completely opposite conclusion, based on the same set of facts.”
8. Use the right expert at the right time
Not all of the attorneys interviewed agreed on the importance of using the same expert witness at trial as was used in a deposition but all noted that it is generally a good practice to use the same expert witness at both the deposition and the trial. According to Ron Miller Jr., “impeachment material from depositions can be very damaging, so I generally try to keep the same expert from the deposition to testify at trial and also videotape all expert depositions for later review. When we find video-recorded depositions of opposing experts making contradictory statements, we sometimes even play clips of these contradictory statements in our opening arguments using available courtroom technology- you don’t want your expert to be in this position as it greatly detracts from their credibility from the outset.” Both Ron Miller Jr. and Kevin Pflug agree that part of an expert’s credibility involves conceding to opposing counsel’s points at the appropriate times. Especially if a fact or opinion is well known or widely accepted, it reflects poorly on the expert’s credibility if the witness fails to concede simple facts for the sake of bolstering one side of the case.
9. Look out for expert credentials
An issue that came up during all of these interviews concerned an expert witness’ credentials. We wanted to know how these attorneys felt about expert witnesses who received their degrees from schools abroad. Attorneys Anthony Castelli and Ron V. Miller Jr. agree that this can be an issue, since it tends to raise a few eyebrows about why the expert didn’t receive his or her degree from an American school, and a juror bias against the reputability of unfamiliar schools abroad. However, attorney Kevin Pflug disagrees.He insists that where an expert received his or her degree is not the primary criteria for quality. He prefers experts who have a record of solid performance at trial, with the charisma and presentation skills needed to develop a good rapport with the jury. “It is more important that the expert be able to connect with jury members than to have received his degree from a school abroad.” Expert credentials are important, and need to be evaluated before trial. Attorneys should be aware of any possible issues that may be raised with respect to those credentials.
10. Communicate with your expert
Though the attorneys had differing perspectives, all three agreed that communication is absolutely key when working with an expert witness. Some attorneys like Kevin Pflug have a stronger preference for meeting with the expert witnesses in person to get a sense of their demeanor and personality, while other attorneys like Anthony Castelli feel just as comfortable corresponding with the expert largely over the phone. In either case, open communication between the attorney and expert witness is extremely important to ensure that an expert’s testimony is as effective as possible. All three attorneys noted that in some instances, experts can sound unintentionally condescending when explaining difficult subject matter to a jury, and that jurors respond poorly to expert witnesses who appear arrogant. Attorneys should feel comfortable discussing nuances like this with their experts and engage in a collaborative process to ensure the best testimony possible.
After speaking with these three attorneys, whose successes have attracted large followings on their social media channels, we gained a firsthand look at the reality of working with expert witnesses and what strategies they use to make the entire process of selecting an expert and using expert testimony more efficient and smooth overall. Keep these tips in mind for the next time you are working with an expert witness in a personal injury or medical malpractice case.