The 5 Biggest Risks Of Using “Old Reliable” Expert Witnesses


The 5 Biggest Risks Of Using “Old Reliable” Expert Witnesses

You’ve won cases with them before. Case preparations are a snap with expert witnesses you’ve used for years. Surely, you’ll go to the “old reliable” route for an expert on your next new case. Best move, right?

Not so fast. Repeated use of the same expert witnesses can create hidden vulnerabilities that have the potential to harm your cases down the line.

1) Cross-Examination Risks—You’re the Gravy Train

One of the biggest perils of repeated use of the same experts is the easy credibility crusher: you’re their gravy train. Imagine the impact on the judge or jury of opposing counsel’s question, “How much has the plaintiff counsel paid you on all cases to date?” If the number is big, there goes that witness’s credibility.

The jury will think you have them in your pocket, believing this old reliable expert of yours will say anything you want to keep money rolling into their bank account. Once the seed of doubt is planted, juries will have an unconscious bias against you and your bestie-expert.

To avoid these risks, adding new blood to your team is a good idea.

2) Same Old Voice Dulls Strategic Thinking

Okay, so you’ve relied on this expert for years, and you’ve won cases following their advice. You are so connected, you can almost predict their strategic advice. Hate to say it, but this is not an advantage in today’s litigation world.

To develop creative, winning case strategies, you need a fresh perspective. You need to pop new ideas for every case, not fall back on familiar formulas. Are you getting fresh insights from your current expert roster?

If “groupthink” can cause the illusion of vulnerability, explain away contrary views, and create blind-spots from stereotyping the opposition, chew on the decision-making risks of having the same expert advise you time and time again. What blind spots have the two of you developed that impinge on strategic thinking for new cases? You owe your clients the best possible advocacy for their case success.

3) Resting on Laurels Can Be Dangerous

Everything changes at lightning speed today. Excellent expert witnesses constantly update their knowledge base with current thinking and challenge themselves to delve into cutting-edge discoveries too. How confident are you that your “old reliables” are up to speed?

Digital breakthroughs are rapidly impacting all industries. Manufacturing happens at a nano-level today. Artificial intelligence informs business decisions and guides compliance in countless organizations. Expert witnesses that rest on their laurels—past publications and outdated expertise—and don’t keep up with these kinds of digital changes are not going to serve you and your clients well today or in the future.

But digital is not the only kind of expertise you’ll need. Regenerative medicine marches us into the future of healthcare. Standards of care in countless diseases, including diabetes, change every year. Even concrete isn’t static. Construction concrete is changing in our techno-green age.

Expert witnesses that rest on their laurels and fail to keep up with changing technical and industry standards pose a risk to your success as a client advocate. Falling back on your expert roster is a much riskier move than supplementing your cadre with experts in the precise specialties your case calls for.

4) Familiarity Breeds Laziness

You call upon them all the time, so it’s easy for reliable oldies to get, well, lazy. If you automatically give new cases to your tribe of experts, what’s the incentive for them to pull out all the stops to vigorously prepare? Researching current trends in the industries relevant to your case is essential. You don’t want to be off-footed by opposing counsel’s expert who has done the research.

Ask yourself if you have cut preparation corners because you’ve gone to battle with this expert before. A failure to review the case facts, key issues, and players with your expert just because you “know” they will do their homework creates risk. What if they mess up in court on a basic fact?

Experts are busy people with no shortage of confidence. Don’t fall prey to their resistance to prepare with you. An  “Oh, I know what you want, we’ve done this 50 times” attitude should always raise an eyebrow. When you hear that, run. Better to search out a fresh expert who will give it their all to earn your business.

5)  How Well Do You Know Them Now?

Hidden “gotchas” about performance or serious changes in their background can spell disaster if you always rely on your tried-and-true cadre of experts. People get convicted on DUI charges or end up in the newspaper for unethical or scandalous behavior all the time. Professional licenses are revoked, certifications lost from neglect or bad behavior. What if your “old reliable” fumbled in testimony for another client on exactly the issues at hand in your new case? You may be completely in the dark about this when you pick up the phone to hire them for a new case.

Loyalty is not going to get you insights into their current performance track record. The expert would likely not divulge any negatives to you as they want to keep your business. And do you really want to spend your time doing background checks and confirming professional status for your roster members?  If you keep blindly using the same experts, you are inviting opposing counsel to drop a bomb on your “old-reliable’s” next testimony and risk destroying your case.

If you are at all worried about the freshness, credibility, and capabilities of your longstanding experts, it’s time to act. You can learn more here about how to expand beyond your same old cadre of expert witnesses.

About The Author

Carolyn Casey, J.D., is a legal content writer with 10 years of experience at AmLaw100 firms. Carolyn received her bachelor’s degree from Stanford University and her J.D. from the Washington College of Law at American University.