General Information About Expert Witnesses and Consultants
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Experts and consultants often play
critically important roles in litigation. The more important or complex the matter, the
more likely it is that one or more experts will be involved for each side.
Who is an expert?
Experts are persons with special knowledge, skill,
experience, training and/or education that goes beyond the experience of ordinary members
of the public. In a murder case, for example, the experts called would range from crime scene
investigators, DNA blood analysts, knife experts, forensic pathologists, police practices
experts, to munitions manufacturers.
The role experts play will vary from case to case.
Sometimes an expert will serve solely as a consultant to the lawyer, and remain in the
background, without his or her name ever being known to the other side. At other times an
expert will be used in the pre-trial stages, perhaps to give an affidavit supporting an
element of the case. In other cases the expert may serve solely as an expert witness at
trial. Sometimes an expert will play a combination of these roles.
The types of work experts and
consultants perform includes:
- Educate Counsel. Lawyers tend to be
generalists, not specialists in the specific field that may be at the heart of a case.
Consider a lawyer determining whether to bring a medical malpractice case against a
surgeon or a hospital and/or to launch a product defect case against a manufacturer of
medical equipment after the death of a cardiac patient. The lawyer is not a cardiac
expert, and would need to consult with experts in cardiac related medicine to review and
understand the alternatives that were available for the proper treatment of the patient's
particular condition. For example given the range of available options in cardiac
situations -- such as dietary changes alone, drugs, angioplasty (with or without insertion
of expanding tubes called "stents") and open heart surgery was the
treating physician acting with the degree of knowledge and care that is called for? Was
the medical equipment that was used properly manufactured, labeled and designed? Was the
information the doctor disclosed to obtain the patient's "consent" to operate
sufficient? Experts help explain the situation and the then available alternatives to the
- Case Evaluation. Experts are often
used by lawyers to evaluate a case and help determine whether a claim has merit, such as
what caused an auto accident driver carelessness, faulty brakes, a highway design
defect, or something else. Other times experts will be used to evaluate the nature and
extent of the damages sustained, the likely loss of earnings capacity and income a
claimant has sustained, for use in settlement negotiations.
- Testing. Experts are frequently used
to test items of potential evidence was the brake lining built to standards, or
damaged by faulty installation? DNA experts
test blood samples and reach conclusions as to whether it matches that of the defendant,
or may have been "tainted". Similarly DNA experts are regularly used in
- Experimentation. Experts may conduct
a series of experiments to prove, or disprove a point. For example in the 1995 O.J. Simpson case a
series of experts conduct experiments trying to show a glove identical to that reportedly
found behind Simpson's guest house would or would not "shrink" if wet.
- Assist in Case Development. An
expert may be used to help the lawyer build a case, or defend a case. For example, an
expert may gather evidence to show that as an alternative to cardiac surgery, the use of
one stent may have been justified but once it became apparent that multiple stents would
be needed, open heart surgery was the proper alternative.
- Obtain Other Expert Witnesses. Experts
are sometimes used to locate and recruit other experts who will testify at the trial. For
example the expert who can best educate counsel may not be an attractive or available
witness s/he may stutter, or not have a degree from a prestigious school, or always
work for plaintiffs and thus be "suspect" to the jury, or be unwilling to
testify or be unavailable at the likely date of trial. The first expert may help find
another expert who would be a more attractive or impressive witness, perhaps
because s/he has just written a paper on the subject, or holds a distinguished faculty
position, or has never previously testified and would be a "fresh face". In
addition, sometimes the first expert can on a peer-to-peer basis motivate the second
expert to participate, which the lawyer alone could not have done.
- Provide Written Statements. The
expert may be called upon to prepare a report of her/his findings to be used in settlement
negotiations or, in sworn affidavit form, to be used in connection with motions or other
court proceedings prior to any trial.
- Prepare Demonstrative Evidence. Apart from introducing "real evidence" -- which might
consist of evidence from a crime or accident scene, such as blood stains material
called "demonstrative evidence" is often created specifically for trials to help
demonstrate or explain matters. Among items of demonstrative evidence that may be created
by or at the direction of experts are diagrams, maps, models and computer simulations that
will help the jury understand one party's contentions.
- Testify at a Deposition and/or Trial. Ultimately,
if a case is not settled, there is a trial. Expert testimony is often presented to help
persuade the judge, the jury or arbitrators.
What do lawyers look for in engaging an
expert or consultant?
Although there are no specific requirements
that all experts must meet, depending on the type of case and the subjects involved,
lawyers selecting an expert will look for the following criteria:
- Compatibility. There is no escaping
it, style is critical. If you can't get along with the lawyer you would not likely be
hired as his or her expert.
- Presentation Skills. Particularly if
the expert may be used as a witness at trial, he or she should be someone who a judge and
jury will understand, respect, like and certainly trust. If you can't explain your subject
simply, so that a jury of ordinary people can understand you and believe what you say, you
are unlikely to be selected or respected as an expert witness.
- Education, Degrees and Training. Different
fields of expertise have different educational requirements. For example, by definition a
psychiatrist must be a graduate of a medical school and be well trained in psychiatry
after a residency at a hospital. The more prestigious the medical school degree and
residency, the more impressive the "credentials" are likely to be to most
juries. On the other hand, a ballistics expert typically will not have any advanced
degree, if s/he has a degree at all, and will have become an expert as a result of on the
job training typically with a law enforcement agency. The glove expert need not have had
any degree either -- years in the glove business teach one things that ordinary people do
- Specific Knowledge. If you are going
to be the expert, the lawyer generally will want to make sure you have the knowledge he or
she is looking for exactly in the field, and will not be learning it on the job. You role
will be to make the lawyer's role easier and more effective. For example, if the case
involves life insurance product design, even though you may be a great insurance
underwriter or sales executive, unless you know enough about product design, you probably
won't be hired.
- Practical Experience. Ideally an
expert has both the requisite level of academic training and at least several years of
actual experience in the field. Depending on the field, lawyers are often afraid of using
someone without real world experience. For example, a first year surgical resident might
technically qualify as an expert on surgery, but would be outclassed by someone with 5 or
10 or 20 years experience.
- Publications and Teaching. If it is
customary for experts in the field to author articles, it is better if the expert also
published. Ditto for teaching and lecturing. It is not necessary, just better. Of course
if the expert has written something that is inconsistent with his or her expected
testimony, there would be a lot of explaining to do, as you can assume the other side will
find out about it. (In such cases, the lawyer would possibly be better off using an expert
who never had written anything.)
- Licensing and Certification. If the
expert works in a field for which state or federal licensing is required, obviously he or
she should have the requisite license. If practitioners in the field typically are also
certified by an organization of his/her own profession, a lawyer going to produce an
expert to testify at trial will want to use one certified as qualified by his/her peers
before presenting the person as an expert to the general public.
- Honors. Obviously a person who has
received special honors for his or her work will be given extra respect from a judge and
jury. That does not mean that you must have a Nobel Prize to be an expert witness. But if
you have earned any honors, it may not be prudent to keep them hidden.
- Balance. An expert who earns his or
her principal income as an "expert witness", particularly one who always
testifies for the prosecution in criminal cases, or plaintiffs for the civil cases, (or
always for the defense), will be regarded as somewhat suspect by the judge and jurors. An
expert who "works both sides of the street" and is trusted by both sides is
- History as an Expert Witness or Consultant to
Lawyers. Some lawyers look for an experienced expert witness, and are reluctant
to use as an expert a pure "litigation novice" who may not understand what being
an expert in litigation involves or stand up to the pressure involved. Other lawyers
prefer a "fresh face," who rarely testified and thus is not likely to be
regarded as a "paid spokesperson." If you have had some experience as an expert,
you'll have to disclose that experience.
- Willingness to Serve as an Expert. Lawyers
are busy, and their staffs are busy. If a lawyer is looking for a Pediatrician to serve as
an expert, s/he doesn't want to go to the Yellow Pages and call every doctor listed under
Pediatrician to ask if they would be interested in serving. Most Pediatricians couldn't or
wouldn't be willing to serve. That is why lawyers, insurers, government agencies and
others who typically hire experts go to http://ExpertPages.com
or other directories when selecting experts. The persons listed in the experts directory
have essentially expressed their availability, in an appropriate matter, to serve as an
expert. That makes it easy and convenient for the lawyers and their staff.
How Much Are Experts Paid?
Asking how much an expert is paid is like asking
"How much does a house cost?" The answer is "It depends."
First, experts are NOT paid for their testimony as
such. They normally are paid for their TIME. That involves not only their time on the
witness stand, but the time they spend in evaluating matters, studying files or reviewing
evidence, meeting with lawyers, coming to conclusions, and sitting around waiting to
testify, and sometimes clearing their schedule to be available to testify. (Some also
charge for travel time.) The expert's time on the witness stand is typically a tiny
fraction of the expert's total fee. Many experts impose a minimum fee, so that they won't
take on minor matters that generate more mental anguish than income -- and could create
future conflicts of interest. You should discuss the issue of your fees in advance with
the lawyer retaining you.
Most experts who testify are paid at rates
comparable to the normal fees they earn from other assignments. You can bet the question
of the expert's fees -- if not brought up by the lawyer retaining you -- will come up in
the course of the the other side's cross-examination. If the amount is out of line, the
judge or jury might just conclude that the expert is being paid more than usual in an
effort to "sway" his or her testimony. For example, if a dentist typically
generates fees of $150 per hour, s/he will generally charge something similar per hour for
taking on a matter as an expert. Were the dentist to charge $500 per hour, how would you
as a juror react? (You'd probably conclude that the witness was being paid an extra $350
per hour in an effort to buy the testimony.) However, it is not all that unusual for the
expert to be paid slightly more for appearing at trial, than doing ordinary office work.
(Doctors typically charge more for performing an hour of surgery than for an hour long
In short, serving as an expert can be very
interesting and educational and enjoyable. But it won't make you rich.