The selection of expert witnesses is one of the most consequential decisions an attorney makes in complex litigation. A well-chosen expert can crystallize a complex technical issue for a jury, lend credibility to a theory of liability or damages that would otherwise seem speculative, and withstand the most aggressive cross-examination. A poorly chosen expert can undermine an otherwise strong case, expose your client to devastating impeachment, and leave the jury with a lasting impression of incompetence or dishonesty.
Over thirty years of trying cases, I have developed a systematic approach to expert selection that has served my clients well. Here is that framework.
Step 1: Define What You Need Before You Start Looking
The most common mistake attorneys make in expert selection is starting the search before they have clearly defined what they need the expert to do. Before you contact a single expert, answer these questions:
- What specific opinions do you need the expert to offer?
- What methodology must the expert use to survive a Daubert or Frye challenge?
- What is the expert's role in your overall trial narrative are they the centerpiece of your case or a supporting element?
- What is the likely opposing expert's profile, and what qualifications do you need to match or exceed?
- What is your budget, and how does that constrain your options?
Only after you have answered these questions should you begin the search process.
Step 2: Build a Candidate Pool
Effective expert identification requires casting a wide net before narrowing the field. Sources for building your candidate pool include:
Professional Networks
Your colleagues who practice in the same area are your best initial resource. An expert who has performed well in a similar case for a trusted colleague is a much lower-risk choice than an unknown quantity identified through a directory search.
Academic Institutions
For technical and scientific issues, university faculty in the relevant discipline are often excellent candidates. They bring academic credibility, publication records that establish their expertise, and (usually) no financial dependence on expert witness income that opposing counsel can exploit.
Expert Witness Directories and Databases
Commercial expert witness databases provide searchable access to thousands of experts across virtually every discipline. These are useful for identifying candidates in specialized areas where your network may be thin, but they should be the beginning of your search, not the end.
Step 3: Vet Candidates Thoroughly
Once you have a candidate pool, the vetting process is critical. I conduct a four-part vetting analysis for every serious candidate:
Credential Verification
Verify every credential the expert claims. Degree verification, board certification status, professional license status, and academic appointments should all be confirmed through primary sources. Expert credential fraud is rare but not unknown, and the consequences of discovering it mid-trial are catastrophic.
Prior Testimony Review
Obtain and review as much of the expert's prior deposition and trial testimony as you can find. Look for inconsistent positions across cases, prior impeachment, and any testimony that opposing counsel could use to undermine your case. Pay particular attention to testimony in cases where the expert was on the other side of the same issue.
Publication Review
For experts with academic publication records, review their publications for positions that might conflict with the opinions you need them to offer. A published position contrary to your theory of the case is a serious problem that opposing counsel will exploit.
Reference Checks
Contact attorneys who have worked with the expert in prior cases. Ask specifically about the expert's performance under cross-examination, their ability to explain complex concepts to lay jurors, and their responsiveness and reliability as a collaborator.
Step 4: The Initial Consultation
Before retaining an expert, conduct a substantive consultation to assess three things:
- Can they actually offer the opinions you need? Some experts are reluctant to offer certain opinions or have methodological constraints that prevent them from reaching the conclusions your case requires. Better to discover this before retention.
- Are they credible and likable? Jurors decide whether to believe an expert within the first few minutes of their testimony. An expert who is technically brilliant but comes across as arrogant, evasive, or condescending will not serve your client well.
- Can they explain complex concepts simply? Ask the expert to explain the core technical issue in your case as if they were talking to a high school student. The ability to translate complexity into accessible language is the most important skill a testifying expert can have.
Step 5: Managing the Expert Relationship
Once retained, the expert relationship requires active management. The most common failure mode is insufficient communication attorneys who retain an expert, send them documents, and then don't engage substantively until the deposition is imminent.
Invest time in educating your expert about the full context of the case, not just the narrow technical issue they're addressing. An expert who understands the overall litigation strategy will be a more effective witness than one who is operating in isolation. Review their draft report carefully and push back on any opinions that are not adequately supported or that create unnecessary vulnerabilities on cross-examination.
The best expert witness relationships are genuine collaborations between attorney and expert, each bringing their respective expertise to bear on the problem of persuading the factfinder. Treat your experts as partners, and they will perform accordingly.
