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Using Expert Witnesses - Tips for Attorneys

It is easier than ever to find experts through the internet, including through the expert witness directory.

When you are looking for an expert, seek recommendations from attorneys who have litigated similar cases.

When you hire an expert, be clear about what you expect the expert to do. If you don't discuss the expert's fees, you may be surprised at how much you are billed for the expert's services. Keep the expert appraised of trial dates, so that scheduling conflicts can be resolved early.

Ask an expert for references, and follow up on the references. Find out how well the witness performs at deposition or trial, before making a costly error. You may not be able to get a supplemental or replacement expert if you later discover that your expert withers before a competent cross-examination.

Know how much your expert charges, and when you will have to pay additional charges (such as "rush fees" or travel expenses).

Use your expert to help you develop your case. If you know as much or more than your expert, you are probably wasting your money. As a general rule you should only hire experts who know more than you, and use their knowledge to build your case. For example, experts can often help you draft interrogatories prepare questions to ask at your depositions of your opponent's experts. Although you have to pay the expert for his time, you may find that the time you save is worth far more than the amount you pay. Also, a good expert will come up with questions and theories that you are unlikely to discover on your own, without investing a vast amount of time and energy.

Know the rules of discovery. If your expert prepares a report, know if you will have to turn it over to your opponent. In Michigan, your opponent may not be able to secure an expert's report in civil litigation, but a prosecutor can obtain your expert's report in criminal litigation. If your experts' report is subject to discovery, make sure that no report is prepared unless and until you are ready to provide it to opposing counsel. Let the expert know what portions of his file constitute "work product," so that confidential material is not accidentally disclosed to your opponent.

Don't prematurely destroy the other side's expert. In one notable case, a bright yet inexperienced attorney did a remarkable job of demolishing the credibility and conclusions of the expert at deposition. At the end of the deposition, the attorney gloated, "If you're going to take this case to trial, you had better get a better expert." The opponent did just that, and won at trial. Had the attorney saved his devastating impeachment for trial, he probably would have won his case.

Cost isn't everything. The least expensive expert I have ever used gave one of the best trial performances I have ever seen. The jury respected him and believed him, found him exceptionally knowledgeable, and his "plain language" explanation of some complex technical issues was a decisive factor in obtaining a verdict in my client's favor.

About the Author: Aaron Larson is a Michigan lawyer, practicing primarily in the areas of civil litigation and appeals.