How To Undermine Your Own Expert Witness

When you're involved in a case that requires expert testimony, it is critical to find a qualified and credible expert. As expert witness fees and associated costs can add up quickly, it is also important to properly budget for your expert witness.

When you fail to carefully select your expert, or fail to take basic steps to facilitate the expert's work and maintain a positive relationship, you put your case at unnecessary risk.

Here are the biggest mistakes that you can make when hiring an expert:

Don't Hire the Expert Early in the Case

When a case involves expert testimony, a qualified expert can help you identify issues in the case and to identify vulnerabilities in the opposing party's position that may otherwise be difficult for you to identify, or which you may fail to identify to the detriment of your case and client.

A good expert will provide an objective analysis of the merits of your case. Having the expert involved in the earlier stages of your case can help you identify those key issues early, and can help you avoid chasing theories that prove not to be supported by the evidence.

If you delay your decision to hire an expert, you lose the opportunity to build your case based upon your expert's interpretation of the evidence. An expert brought in at the last moment may not have time to adequately prepare for a deposition. You may force your expert to review reports, evidence and testimony over too short of a time frame, preventing a complete analysis and impairing the expert's ability to be an effective witness. Also, by the time you contact your preferred expert you may find that the expert cannot participate in your case due to a schedule conflict or, worse, has been retained by opposing counsel.

Delegate the Search for an Expert Witness to Your Staff

While your associate or a member of your staff may be qualified to search for possible experts, and to review the basic qualifications of possible experts, they will reach a point in that review where their ability and experience cannot substitute for yours.

You know your case and its issues like no one else. That makes you the proper person to interview potential expert witnesses and to decide which experts are most likely to help you develop and present your case.

Also, as a litigator, you'll have a better sense of how a judge or jury is likely to respond to your selected expert, and how capable the expert will be of testifying at deposition or at trial, and at overcoming the opposing party's competing theories.

Use an Expert Witness Referral Service

Most expert witness referral services take a substantial percentage of an expert witness's fees. As a result, the expert will charge a high hourly rate in order to obtain a reasonable fee after the referral service takes its cut.

Once a referral service puts you in touch with an expert, there is no opportunity to avoid the service's charges - the expert is contractually required to work through the referral service. If you identify the same expert without involving a referral service, you may be able to negotiate a fee that is substantially lower than the rate the same expert charges when working through a referral service.

Hire an Expert Who Lacks the Necessary Expertise

You may find an expert who claims to know everything about a particular area. Be careful, as we live in an era of intense specialization. In most professions, an expert will potentially have in-depth knowledge of a specialty or subspecialty, but the expert who claims to know everything is likely to demonstrate knowledge that is a mile wide and an inch deep.

You may encounter an expert who offers an interesting theory that seems like it will support your case, but which lacks the proper foundation to be used in court or is vulnerable to attack by your opponent based upon more conventional theories and peer reviewed publications.

Hire an Expert Who Always Works for the Same Side

When you interview your expert, explore the expert's litigation history - including the number of reports prepared for cases, the number of times the expert has testified at deposition and the number of times the expert has testified at trial. Then find out how frequently the expert testifies for plaintiffs as opposed to defendants.

If an expert always, or almost always, testifies on behalf of either the plaintiff or defense, you need to consider whether the expert has biases that might affect how he analyzes your case. You also must consider whether a jury will view the expert as objective or credible after opposing counsel portrays him as a partisan.

Don't Communicate With Your Expert

While it may be understandable that you want to avoid unnecessary communication with your expert in order to avoid running up a larger bill, it remains crucial to communicate effectively with your expert throughout the course of litigation.

If you don't share facts, testimony and evidence with your expert, you risk having your expert present a theory that proves inconsistent with the evidence you failed to provide. Your expert needs to be able to trust you to provide all of the relevant evidence. You do not want your expert to be embarrassed on the stand. That can affect both the viability of your case and your reputation as a litigator.

  • You need to keep on top of your expert's progress in analyzing the case, preparing reports, and preparing for deposition or trial.
  • You need to make sure that your expert will be available on the dates when he is expected to testify.
  • You need to be certain that reports from testifying experts will be completed on time to exchange through discovery.
  • You need to maintain a sufficient level of communication such that you can communicate with your expert and can avoid surprises and delays.

Don't Pay Your Expert

While lawyers who work on a contingency fee basis may hope to avoid paying their expert until the case settles or after verdict, experts don't work on a contingency fee basis and most expect to be paid on a regular basis, sending invoices detailing their time and costs.

While an attorney may be ordered by a court to remain in a case, litigating on behalf of a client who has not paid his bill, experts don't operate under that type of constraint. That is, an expert witness can quit. If you fail to pay your expert, you risk finding yourself without an expert.

You should have a written fee agreement with your expert with mutually agreeable payment schedule. If you encounter cash flow problems, let your expert know what is going on.

Copyright © 2014 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Apr 6, 2018.