Tips Paralegals Can Use to Select Expert Witnesses
                                                                                           
                                                                                        Click here for SEAK's Expert Witness Directory

 By Steven Babitsky, Esquire
 President, SEAK, Inc.
 www.seak.com

Choosing the "right" expert witness can be one of the most crucial decisions made when preparing a case for settlement and/or trial.  Experienced and successful paralegals follow a mental checklist in determining who to select as an expert witness.
 

Specific Area of Expertise Sought

The initial step in the selection process is to determine the specific area in which the expertise will be needed.  There are approximately 10,000 categories of expert witnesses including over 750 medical specialties.  It is thus imperative that the paralegal have full understanding of both the general type of expertise sought and the specific area in which the expert will be asked to opine in.  For example, the general category of expertise may be engineering or safety, the product may be forklifts, and the narrow specific area in which the expert may be asked to opine in may be "forklift fires."

In a medical malpractice case the general area of expertise may be medicine, the specialty may be OB/GYN, the subspecialty may be maternal-fetal medicine, and the specific area in which the expert will be asked to opine in may be "fetal distress."

When, and only when the specific area of expertise is narrowed, should the paralegal begin her search for the expert witness.  Beyond the true area of expertise, what is counsel really looking for in an expert witness?

What Are the Attributes that Counsel is Looking for in an Expert Witness?
 

The Expert Witness Must Be Qualified to Testify and Withstand a Daubert Hearing

            Professional memberships and affiliations                       

            Training licensure and certification

            Practical experience                                                      

            Litigation experience

            Literature published and research projects                       

            Real world expertise

            Education from reputable undergraduate and graduate universities

The Expert Witness Must Possess Integrity and Credibility:

            Objectivity                                                                    

            Lack of Bias
 

 The Expert Witness Must Be Reasonably Available:

            Not too busy with private practice and consultation to testify

            Fees should be reasonable and should not become an issue
 

The Expert Witness Must Be Willing and Able to Properly Prepare:

            Willing to devote time necessary to prepare
 

The Expert Witness Must Be Articulate:

            Communicate truth in an ethical, objective, and effective way

            Will not deny or overemphasize uncertainty

            An expert who speaks to the jury and observes them for their feedback: nonverbal   reactions

            An expert who will not back off his/her opinions
 

 The Expert Witness Should Be Likeable and Personable

            Voice

            Likeability and believability

            Eye contact

            Demeanor

            Dress

The Expert Witness Must Be Able to Think on Their Feet

            Able to react to difficult questions

The Expert Witness Should Want to Work With Attorneys

            Too busy - doesn't return phone calls

            Condescending

The Expert Witness Needs to Be Able to Roll With the Punches

            Is expert able to deal with difficult and unexpected developments?
 

Experienced But Not Overexposed or Compromised

Paralegals will have to balance the need to have an expert that knows his way inside a courtroom with the need not to have an overexposed expert who will be perceived as a hired gun.  The expert witness should be asked to provide his detailed and complete CV with, when available, and appropriate his latest Rule 26(2)(B) filing.  FRCP 26(2)(B) provides in part,

 "(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specifically employed to provide expert testimony in the case or�; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years."

The CV and Rule 26(2)(B) filing should be studied to see if the expert is overexposed, has any lurking conflicts, or is any other way compromised.

Skeletons in the Closet

The expert should be asked directly if she has any skeletons in the closet, has been the subject of any disciplinary actions, or the subject of any lawsuits.

Contrary Opinions or Writings

The expert should be asked if he has ever offered any opinions contrary in this area and/or has ever written or spoken on this issue.  All articles and speeches should be researched for potential problems.

Website

The paralegal should check out the expert's Website to see if any potentially damaging material is listed, which could adversely impact the underlying case.

Conclusion

Selecting the best expert witness for a particular case should only be done after the steps mentioned above are taken.

About the Author

Steven Babitsky, Esq. is the President of SEAK, Inc.  (www.seak.com) which provides training, texts, videos, marketing resources and other products and services for expert witnesses.  Steven is the seminar leader for SEAK's Annual National Expert Witness Conference which is held each June on Cape Cod, MA. 

Click here for SEAK's Expert Witness Directory