In selecting an expert witness experienced trial attorneys employ a veritable or actual list of factors to consider.  While the fees that an expert charges may be the foremost thought in the client’s head, it is almost never at the forefront of the litigator’s checklist.

The quality more valuable than any other is that of credibility. Such quality is composed of many factors. The “believability” so to speak, of the expert is critical. If the jury doesn’t find the witness’ testimony to be believable, you have thrown out money and likely will lose your case.

What follows is a checklist that a litigator could employ before engaging a prospective expert witness. Never hire an expert unless both you and your lawyer have spoken and met the expert.

The below are not ranked in order of importance (although it starts with Jack’s favorite):

Experts Should Not “Play Lawyer”

Some inexperienced or “know it all” experts try to figure out why the attorney is asking a particular question or set of questions. This distracts the expert from listening to the question(s) and answering just the questions that are asked. Often the lawyer is confused, tired or doesn’t realize that his/her questions are phrased incorrectly. Often, very often an attorney who is cross examining such a witness will intentionally lead a witness who appears inclined to guess what the lawyer’s strategy is. far, far away from that which the expert anticipates.  The result is often confused expert responding to questions that were never asked who appears to the jury as a person more interested in his/her reputation than in answering simple questions.

A good expert never assumes, in either a deposition or at trial that the line of questioning is relevant to anything. There may or may not be a reason for every question. In a deposition, the lawyer may well ask many questions on subjects unknown to an expert simply to learn the expert’s scope of knowledge.

Here’s Ed’s favorite real life example of this tactic. He was examining the head photo editor of a weekly news magazine. When it appeared to Ed and his associate that the expert was faking knowledge of who certain photographers and celebrities were, rather than just saying that he/she “doesn’t know”. So Ed asked the following question:

Ed: “Do you in your professional opinion believe that my client is as well known a photojournalist as say, Al Di Meola”?

Expert: “They are certainly comparable”

Ed: “Do you know who Al Di Meola is”?

Expert: “Of course, He is a fine photographer”

Ed: (showing and reading a Wikipedia page) The first sentence here reads ” Al Laurence Di Meola (born July 22, 1954) is an American jazz, jazz fusion, and world music guitarist. Albums such as Friday Night in San Francisco have earned him both critical and commercial success with fans throughout the world.”

Ed’s next question was: “I guess you are just not a jazz fan”

Expert: “Yes I am, I love jazz”.

The opposing lawyer could only groan.

What type of expert is needed?

If it is critical to prove that the defendant made substantial profits from the infringement ie used in packaging, perhaps an economist or CPA who performs royalty accountings on regular basis is preferable to someone with expertise in photography. If the key issue is whether metadata has been altered, then a tech person from a company with no stake in the outcome like Adobe might be a witness suited to testify.

Credentials 

The expert ought have no prior relationship to any of the parties. He/she ideally should not have a lengthy history of testifying for the attorney selecting him/her nor seemingly always testifying for plaintiffs or always testifying for defendants. Professors are generally considered by juries to be neutral experts but often lack the abilities to be good listeners, are not nimble on their feet, may appear elitist and are easily goaded into being obstinate on the stand. The expert can never have a financial stake in the outcome of the case ie the expert’s fee will be X% of what the plaintiff may be awarded by the jury.

Credentials include but are not limited to items such as: undergraduate, graduate degrees, professional certifications, licenses, awards, authoring books or articles, lecturing, membership in prestigious trade associations, employment with highly respected companies and hands on long term experience in the type of issues at play in the case.

Ability to Communicate

If the expert is not engaging, interesting to listen to, drones on when speaking, mumbles, speaks so low he/she can hardly be heard and/or is unable to use common words easily understood by a jury, forget him/her.

Charisma

Having charisma assists enormously with making the witness credible. If the jury likes the witness, the witness becomes more believable. It’s the old “Elevator Test”. How do you think the judge or jury would feel about being stuck in an elevator for an hour with your expert? It doesn’t matter if you would be OK or not OK being stuck with them, but rather how do you feel they come across to a judge or to members of a jury? That’s the opinion that counts. But if you say “Eww” at the thought, then that person is not your expert.

Appearance

Movie star or Top Fashion Model looks are not necessary, but should look professional. Does the expert look “put together”, wear appropriate clothing for a courtroom, not have a dyed green Mohawk hairstyle or look like someone who should be in an ICU at the nearest hospital. In selecting an expert, believe that you can tell a book by its cover, because the jury will see your expert that way.

Self Confidence

By appearance, gait, tone of voice, bearing and charisma. The more that oozes out of the expert, the better.

Stay Local

If the case is to be heard in say, Philadelphia, yo, look for an expert from the area in or very close to where the jury lives. If in Boston, look for someone near “Bahson” who’s a “wicked pissa” expert. If in NY, “fugetaboutit”, just get the best!

Local accents, local experts generally make more believable witnesses than someone flown in from LA or NY to testify in say Miami or Chicago. Some jurors (rightly or wrongly) will be suspicious of a witness who comes from thousands of miles away to testify, especially to a major city, which ought have plenty of locals with similar expertise. Home grown, born and raised is great. Gone off to an Ivy League school far away and returns home to work or teach – even better.

Ability to Listen

Lawyers frequently don’t ask the right questions. Some experts don’t listen to the actual questions being asked but are formulating answers to questions that should have been asked. Professors, teachers and instructors who are used to controlling their environments and serving as the ultimate authority right or wrong, are often guilty of this flaw. An expert should answer only the questions asked. If the adversary attorney does a lousy job of asking questions “your” expert should not assist the opposing, inept lawyer. The ability to listen includes the ability to ignore sarcasm. Lawyers love to use sarcasm in cross-examining experts. Why? Because it works! A good expert ignores the tone of the question and answers its contents. Juries give great credibility to witnesses who know how to listen and respond to the content of questions and ignore the theatrics of lawyers “attacking” a witness.

Experience

Enough to know how to perform and appear confident. Avoid “professional expert witnesses” who earn most to all of their income by testifying in court cases.  Experience in dealing with nasty judges or lawyers and familiarity with trials ought help the witness to stay calm under pressure.  Using a service (there are many) which supplies experts to attorneys may be problematic and should be avoided when possible.  Your lawyer may need you to assist in finding the right person in photo/modeling/illustration/advertising industry to use as your expert. A precious few attorneys know these fields well enough to have suitable experts on speed dial.

Ability to Answer Questions

An expert who spouts opinions, theories or makes speeches rather than answer in simple sentences, the exact questions asked is frankly, worthless. Testimony which appears evasive, is.  For this reason politicians make horrible witnesses.

I Don’t Know

Any lawyer, doctor, car mechanic or sheet rock installer ought be able to utter that response to a question to which they don’t know the answer. An expert who can’t use those words but rather digs in his/her heels and fights with the attorney asking the questions, loses any credibility. Nobody knows everything about any topic – your expert is no exception.  The ability to simply say the words if appropriate, is indispensable. Experts who can’t, often guess.  Guessing is often the first step on a path of absurd and unbelievable testimony.

Testimony in other similar cases

Before selecting any expert, his/her testimony in prior, similar cases must be read. If the expert testified that  “A is the preferred process” under oath in a case last year and testifies in your similar case that “B and not A is the preferred process” the contradictory testimony is often sufficient on its own to sink your case. Consistent testimony on similar topics is essential.

Nimble Feet

The expert must be able to improvise as nobody can predict each and every question that will be posed to an expert at trial. If the expert can’t think on his/her feet, say “Buh bye”.

Guts

Your expert must not fear recrimination, loss of income and/or customers because of the testimony he/she will be giving will make the big media company “mad”. The lawyer is representing you and you are “David”. The expert will be testifying against “Goliath”. It is extremely common for experts to refuse to testify against certain companies fearing the consequences to their business, employer or university with which they are affiliated. This fear is of course, far more common in criminal cases where “violent recrimination” ie death at the hands of a mobster or gang leader is a distinct possibility. We must tell you from experience however, that there are certain media companies which are so powerful, employ so many people, hire thousands of independent contractors for all sorts of jobs that obtaining a qualified expert to testify against them in a civil case is no small achievement.

And that folks is our expert opinion on experts. Choose wisely.