Hiring expert witnesses is oftentimes a key aspect of trying a case, and can be the difference between a win and a loss in court. But it can be difficult to know: 1) when to bring in the expert witness, and 2) how to make sure you are hiring the best person for the case and your client. As a forensic accounting expert witness for the past 15 years, I have been on the other side of the selection and hiring process and can offer attorneys some general tips for hiring an expert witness as part of a legal strategy.
How do you decide if you really need to hire an expert witness? Whenever specialized knowledge is needed, a report from an expert can help strengthen a case. In addition to researching the subject area themselves, counsel should go over the following items with the potential expert witness before they are hired:
- Scope of work. Define the issues of the case for the expert as precisely as possible. This will allow the expert to better focus on the critical issues and create a realistic fee estimate.
- Depth and breadth of analysis. Being excessively detailed or focusing on an extraordinarily long time period may result in excessive work-effort and increased cost. However, a narrow analysis may result in a report that is ineffective in court. Is there a happy medium? Based on my past experience as a witness, cases often wind up settling as a direct result of reading an expert’s report so it is better to be more detailed than general in the analysis.
- Case Budget. With continuing economic struggles, litigation costs, including expert witness fees, will continue to be a significant issue for the foreseeable future. It is important that expectations are clearly conveyed to the expert to minimize miscommunication and foster greater control over fees.
Who to Hire?
Research the background, reputation and qualifications of the potential expert witness – opposing counsel most certainly will. This includes:
- Feedback from attorneys in the community. Counsel should first speak with peers. Perhaps others have used the expert and would be willing to provide their insight.
- Verify credentials. Confirm credentials and licenses. For finance/accounting, the CPA credential may be confirmed online with the State Boards of Accountancy; other credentials (CFE, CVA, etc.) can be confirmed with the sponsoring organizations. Lapses may occur, possibly from non-payment of dues or continuing education issues.
- Verify representations. Confirm other representations by the potential expert – even those that seem ancillary. This should include education, speeches, articles, honors, etc. On a prior engagement, I was unable to verify college-level education of an opposing expert and it called into question their credibility.
- Prior testimony experience. Seek to understand the potential expert’s level of experience at testifying, including results achieved. Although past performance is not a guarantee of success, prior experience is an important factor.
- Results of prior challenges. Determine whether the potential expert has ever been challenged – either qualifications or basis for opinion, and the results thereof. Research cases disclosed by the expert, and use databases such as Daubert-Tracker. Challenges are commonplace, and surviving them may tend to enhance the potential expert’s qualifications and suitability.
Knowledge & Abilities
How can you know if the potential expert has the right knowledge for the task? You should consider exploring the following, either with them, or through other sources:
- Subject matter. Determine whether the potential expert has worked in this industry or with the relevant issues in the past.
- Real world experience. Practical experience is more desirable in an expert than text-book learning or academia.
- Simplify the complex. Can they articulate clearly the retention objective, complexities, processes and possible alternative methodologies? Also, will they be able to educate the judge and jury, without using technical jargon?
- Analytical ability. The ability to conceptualize and analyze a problem is oftentimes a critical matter for expert witnesses, so this should be adequately assessed during the pre-retention interview process.
- Detail oriented. It’s the details that are often most important, particularly on forensic accounting matters, so ensure that the potential expert will be actively participating in analyzing the details to yield stronger expert witness testimony.
Even if otherwise qualified, if it is difficult to interact with the potential expert, the awkwardness may end up sabotaging your case. Before trial, plan on spending some one-on-one time with the expert witness, to develop a personal rapport that will shine through during court proceedings. You should consider exploring the following:
- Personality and likeability. Determine whether the potential expert will “play” well to a judge or jury and assess the level of abrasiveness (if any).
- Public speaking. The potential expert should be an effective communicator, which includes eye contact, vocal quality and confidence.
- Adaptable and flexible. Assess whether the potential expert is too rigid to consider other ideas, including suggestions of counsel. It is essential that they be adaptable to events at trial and otherwise, which may be hindered if they can only speak from prepared notes.
- Independent analysis. Be wary of the potential expert that is seemingly pre-disposed to agreeing, without much independent thought and consideration, they may not be firm in their convictions and conclusions, becoming mere mouth-pieces who may be seen as puppets.
- Convey objectivity. The potential expert should speak in his or her own style, and be unbiased in approach and methodology. Those are the experts that will be more believable on the witness stand.
Over the years, I have appreciated working with those attorneys who invested the time to truly understand and learn from my reports and analysis as a forensic accounting expert witness. By being involved in the selection of and communication with expert witnesses, you can increase their effectiveness, thereby further bolstering your personal reputation and success as an attorney.
Mike Rosten is a Principal at Piercy Bowler Taylor & Kern CPAs and Business Advisors. You can reach him at firstname.lastname@example.org or 702-384-1120.