How to find the expert that is right for your case

Daily Record and the Kansas City Daily News-Press, Nov 5, 2004 by Jane Pribeck

Occasionally, he has found an expert by seeing him or her in court testifying on another attorney's case. More often, he uses the Minnesota Trial Lawyers Association's expert witness bank to identify experts and obtain information about them. MTLA's listservs have also helped him in this regard, he says, reminding that it's best to reply with a call or private e-mail.

Consider whether the candidate must have trial experience. This is a case-by-case consideration. Beaulier almost always wants an expert to have trial experience because it means the expert has an understanding of the concepts at issue and probably the pertinent statutes and caselaw. In addition, he or she is probably comfortable in a courtroom. An experienced expert should also be aware of when to answer the question and when to expand an answer, and most trial judges will allow experts to expound freely on the subject. However, at times, this isn't always advisable, he reminds.

Conlin, however, isn't as sold on the idea of trial experience. When the issue is damages, she looks for trial experience because there is a large pool of potential experts. But for the more novel issues, or perhaps when the case involves technology, sometimes finding an expert who has never served in that capacity before, such as a college professor, is the better choice.

For his part, Jackson observes that when choosing between two witnesses with virtually identical qualifications, he'll go for the one with experience - unless he thinks the expert will come across as a professional witness.

Juries tend to be forgiving of virgins, quips Crumley. The important thing for lawyers to remember when using someone who has never testified before is to bring that out in one of the first questions to catch the jury's attention immediately.

Whenever possible, hire close to home. Judges and juries tend to prefer homegrown talent, but also, you can save big time on incidental costs. Or, when the case is not close to your home, choose experts from the forum, Jackson says.

The lone exception, opines Crumley, is experts from the Mayo Clinic, which has a reputation and cachet that resonates with jurors.

Consider using an expert referral service. For some cases, an e- mail to your partners just won't cut it - they likely won't know of experts with esoteric areas of expertise, says Jackson.

Stein, who matches experts and attorneys, points out that the expert can help with early case evaluation before you've invested time and money for advice on a case's technical strengths and weaknesses. Based on an early opinion, you might proceed or turn down a case. Or, when a case involves unfamiliar technical terms or issues, it can be very cost-effective to use the expert to help you master the subject quickly.

Experts obtained via referral services typically aren't cheap, says Jackson. But they are clearly worth it for the big cases where qualified local experts cannot be found.

Do your homework. Screen carefully to avoid false starts, disappointments and having to start over. Assume nothing, emphasizes Stein. Don't be intimidated by a list of professional degrees. Ask for references and contact them. For federal court, check the expert's Daubert history - has he or she met the standard in the past?