Choosing an expert witness for a litigation is often a daunting task. There are dozens of logistical hurdles: identifying top professionals, reading résumés, negotiating fees, and confirming litigation histories, among others. These tasks can take days to complete. Doing your homework to select the right expert and properly preparing them is key to getting the most out of their testimony.
“From the perspective of the judge and the jury, lawyers are presumed not to know anything about the facts,” said Zachary Silbersher, co-founder of Kroub, Silbersher & Kolmykov PLLC, a patent litigation boutique firm in New York City. “As a patent attorney, my cases often involve technology that laypeople may not understand. I need an expert witness who can counsel both the judge and the jury on what the technology is and how to interpret it.”
Credentials, Presentability, and Pedigree
Silbersher looks for three characteristics when choosing the right expert witness: credentials, presentability, and pedigree.
Credentials: Given that a lawyer isn’t always conversant with the expert’s field, establishing credentials isn’t as easy as it sounds. “I was working on a case that involved a pharmaceutical formulation and I didn’t realize that the issue involved was very narrow,” said Silbersher. “I had to speak to five or six PhD professors who understood the topic but didn’t feel comfortable giving an opinion about it.”
Identifying the right expert means doing your homework on their background. “You [look] at their degrees, but what are their areas of research focus, what do they regularly work on, and what sort of articles have they published? Because no matter who you put up as an expert, the other side is going to challenge them.” Silbersher recommends to “think defensively when you hire an expert. You don’t want to just look at their résumé and be impressed. You want to look at their résumé and say, ‘Where are the holes?’ If I was going to attack this résumé, where would I begin?”
Presentability: When it comes to presentability, you’re looking for somebody who can testify, an ability not necessarily related to expertise. “I’ve spoken with a lot of exceptionally intelligent people with sophisticated backgrounds, but they simply don’t have what it takes to be a good witness,” Silbersher said. “If they don’t know how to sit at deposition and sit in court and speak to the jury and do it in a professional and accessible way, then it doesn’t matter how smart they are.”
To evaluate this, Silbersher asks his witnesses probing questions to see how they respond and handle themselves. After all, the expert is going to face numerous challenges from the opposition. “I’ve been in depositions where I sat across a table from a highly credentialed professional, but it’s my job to undermine their credibility. You have to attack their résumé in a way that would be impolite in normal society.” The best experts realize this and roll with the punches.
Pedigree: Pedigree is different from a witness’s credentials. When it comes to expertise, experience counts. “Many times,” said Silbersher, “you’ll find somebody who’s very smart and they have just the right expertise, but they just earned their PhD two years ago. In the litigation world, there’s a preference for people that are older, emeritus professors and the like.” The proverbial gray hair goes a long way in building confidence, and not just in the courtroom. An expert with 35 years of experience is well-grounded in their career and can engender more trust and confidence in the litigator as well. “When you’re assessing an expert,” Silbersher continued, “you want to pay attention to how established they are as opposed to just how knowledgeable they are.”
Practice, Practice, Practice
Many litigators believe that the earlier you involve an expert witness in the process, the better the result. “I personally like the experts to be involved as early as possible,” said Jay Levine, a partner at the law firm Porter Wright Morris & Arthur LLP in Washington, DC. “I want them to have input on discovery, what I’m asking for, the types of relevant data, etc. I really want the expert’s [point of view].”
Levine believes that while the expert can’t assist with the legal strategy, they can help guide case strategy. “Your expert is your cleanup hitter. If they’re experienced at playing that role, they can work with you to help devise your direction,” Levine said.
But such a strategy must be practiced. Hermann Plank, a high-tech consultant in plastics and frequent expert witness, said he appreciates when attorneys have worked closely with him, helping him to realize that he “need[ed] to practice a lot during the preparation.” Plank prefers to review a simulated trial situation in detail, “not once, not twice, but 10 times.”
This level of rehearsal raises the question of overfamiliarity, where testimony becomes more akin to a practiced performance. It’s the opposing attorney’s job to disrupt that performance. Plank’s litigators planned for this eventuality.
“For the cross-exam, they brought in another group of people that I was not familiar with. They tried to punch holes in my strategy and tried to throw me off guard,” Plank said. He has found that an experienced lawyer will not only challenge his expertise, but also employ psychological tactics in an attempt to stir up an emotional reaction. Solid preparation has helped Plank stand firm on his opinion and expertise.
Levine employs a similar approach when prepping his experts. “We come after them,” he said. “Before deposition, we’ll do mock cross-examinations. I bring in some of my partners who have not been on the case and say, here are the pressure points. Go at them. Try to get a rise. And you know, most often [the experts] are extremely appreciative. If you do it right…you know what they’re going to say.”
The Relationship’s the Thing
Finally, it’s key to maintain solid relationships with your expert witnesses. “I do try to spend quality time with my witnesses both at the beginning of the case and periodically through it,” said Levine, who believes it is a way not only of keeping the expert up to date, but also using them as a resource. “I want their reaction, even if it’s not purely an expert issue.”
Plank concedes that where he has experienced poor attorney/expert relationships, that feeling has stuck with him all the way through the case. “[A] lot of that has to do with the personal relationship… Some lawyers are really bullies, not only in the courtroom, but with the expert witness, leaving me to try and find the common ground.”
In the end, getting the most out of an expert requires not only a careful selection process but also much care and feeding following the choice. Like any good relationship, it is a two-way street that requires the efforts of both parties to succeed.
GLG’s Expert Witness Service helps lawyers find the right expert witnesses for their cases. Every engagement begins with a discussion between you and your GLG team to get a full understanding of your specific expert needs. Learn more about our expert witness process and start your search now.
About David Solomon
David Solomon is Global General Manager with GLG Law, a platform that connects lawyers with expert witnesses in complex fields. He was previously with Axiom Global and Bloomberg LLP.
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