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Five Tips on the Proper Selection of Expert Witnesses

Date: 6/27/12

The sporting goods industry is increasingly finding itself the target of products liability lawsuits for personal injuries suffered when using equipment.  The testimony of expert witnesses in the relevant product design, warnings and instructions, engineering, and medical/scientific arenas can make or break a case.  Here are five tips for selecting effective experts:

1.  Do Your Research.  The first step in finding a good expert is to identify and research the leaders in the necessary field.  It is important to designate experts who are accomplished and authoritative.  Still, you will want to be able to communicate effectively with the expert and determine if the expert’s testimony will fit the themes and strategy of your case. 

2.  Find An Expert Who Can Teach. 
Your expert should be able to clearly and simply explain his or her field of research and endeavors to you, the judge and the jury.  This is especially important when the expert’s field is complex.  If the typical lay juror cannot understand the expert’s testimony and opinions, it is unlikely that expert will persuade the jury or make a positive difference in your case.

3.  Question The Expert’s Methodology.  Whether a person is qualified to be an expert at trial is determined by the trial judge.  The expert’s education and work experience are important factors in this decision, as is the expert’s capacity to assist the jury in resolving disputed fact issues.  Before selecting the expert, you should look into how the proposed expert’s methodology fits into the generally-accepted methods of his or her field, and whether that methodology is current.  If your expert’s theories are not accepted or rigorously applied, the testimony will likely be challenged by your opponent and possibly excluded by the court in a pre-trial hearing.

4.  Find A Likeable Expert.  The expert should be someone you and others can work and talk with easily.  If you do not think the expert is likeable, the jury may be even more critical.  You should check the expert’s references for information as to how well the expert performed in prior cases, and what problems arose involving the expert, notably whether the expert failed to communicate effectively or perform the necessary work properly or diligently.

5.  Conduct A Conflicts Check.
  It is always important to determine if there is any possibility that the expert would be biased towards or against any issue or party in the case, and thus negatively affect the expert’s (and your) credibility.  You do not want to find out about a conflict when it is too late, and when you have already invested substantial time and money in your expert.  In particular, it is critical to understand what the expert has written and said in the past, and to obtain and analyze prior testimony on issues also present in your case. 

These tips are not exhaustive, and much more goes into selecting and preparing the right experts for your case.  If you put in the up-front time and effort when selecting your experts, you will minimize the risk of problems later.

 

Article By:
Kevin C. Mayer, Partner
Crowell & Moring LLP
kmayer@crowell.com

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