How To Hire An Expert Witness: 21 Business Experts Reveal The #1 Mistakes To Avoid When Hiring An Expert Witness

With great knowledge comes great responsibility, or so the famous saying goes, and this couldn’t be more applicable to any other type of individual than those who are experts in their field.

And in today’s world, one of the most common ways these knowledgeable individuals might be able to offer their expertise in a meaningful way is by serving as an expert witness.

Since we here at Zintro work to connect hundreds of businesses with expert witnesses of various backgrounds, we wanted to learn more about the expert witness hiring process, and specifically, how businesses that are looking to hire an expert witness can avoid the most common (and avoidable) mistakes that might cause complications down the road in these types of engagements. To do that, we asked 21 business experts with specific knowledge about hiring expert witnesses the following question:

”What’s the biggest mistake companies make when hiring an expert witness?”

We’ve collected and compiled their expert advice into this comprehensive guide to help any business find and hire the right expert witness for their needs. See what our experts said below:

Meet Our Panel of Law & Business Experts:


 Steven WolfeSteven Wolfe

Steven Wolfe is a Partner at Eaton & Van Winkle, a prestigious NY law firm, and has been assisting clients successfully for decades in many areas of practice. He brings an analytical ability to solving problems and provides advice to clients in an articulate and understandable manner and form. Mr. Wolfe has counseled clients on legal and personal matters. He has been actively involved in many litigated matters including trials and appeals, motion, arbitration and mediation in many different courts and in several jurisdictions other than New York where he was admitted pro hac vice.

Companies and attorneys frequently err in hiring an expert witness by…

Failing to exercise objective, independent judgment relating to the planned testimony of the expert witness.

Too often, the person hiring the expert does so because he likes what he hears in the proposed opinion of the expert without properly assessing whether the opinion is supportable and failing to consider how the adverse attorney will cross-examine the expert and possibly undermine his opinion. The expression of a favorable opinion by the expert becomes impossible to ignore or question when the listener becomes enamored of the opinion or thesis put forth by the expert, particularly if the hiring person has originated the theory, which is adopted by the expert.

In a litigation I handled, my adversary made these mistakes regarding his expert. The case involved a dispute between my client and the children of her late husband from his prior marriage. The stepchildren contrived a theory that my client had physically abused her husband and then contributed to his death by overdosing him with medication which had been prescribed for him.
After his death, an autopsy did show a highly elevated amount of this medication in his bloodstream. The medical examiner who performed the autopsy, however, dismissed the claim of an overdose on several grounds.

The stepchildren hired an expensive expert with excellent credentials who had been the medical examiner of a large city but who had become an expert witness in private practice. He advanced the theory of an overdose but, identified the manner of death as “natural” which, under medical protocols, ruled out deliberate overdose. I won the case on a summary judgment motion, asserting that my adversary’s expert had, in effect, conceded the absence of an overdose.


Judge Susan SextonJudge Susan Sexton

Judge Susan Sexton is a renowned former circuit judge, prosecutor, defense attorney as well as an accomplished speaker and legal scholar. Judge Sexton has tried or presided over literally thousands of cases: from death penalty cases to tobacco litigation; from medical malpractice cases to end of life decision cases. Her longest assignment was as the Administrative Judge in Probate, Guardianship, and Mental Health Division, where she was responsible for the highest caseload in the jurisdiction. Learn more about Judge Sexton’s work at her website, www.judgesexton.com.

As a circuit judge, former prosecutor and former defense attorney, I’ve seen plenty of experts: both in criminal cases and civil cases. The best advice I can give is…

To carefully vet the resume that the expert gives you.

Here’s a quick story:

I was prosecuting a high profile DUI manslaughter case, where 3 young girls were killed by a drunk driver. The defendant denied being the driver and hired an expert to testify, that based upon injuries to the defendant and the physical examination of the vehicle, there was no way the defendant could have been the driver.

When I took the deposition of the expert, the expert presented me with his CV, which listed all sorts of education, awards, memberships etc. I thought that the guy was full of it. So, I started investigating the info on his CV. Turns out, he had not received one of the degrees he claimed to have received. Imagine his surprise when I brought this up at trial. The defendant was convicted, of course, and in record time. (30 minutes).

The most amazing thing to me was that, I started getting phone calls from throughout the state from high profile lawyers. They had heard about the cross-examination of the expert and wanted the info. This expert, like many of them, testified in cases all over the state. My thought was: I am a prosecutor without any resources for investigation and I found this out – why couldn’t you? All it took was a few phone calls.


Mark HimmelsteinMark Himmelstein

Mark Himmelstein is an Attorney and Partner at the Newport Beach office of Newmeyer & Dillion, a full-service business law firm, and practices in the areas of construction, real estate, business and insurance litigation. He also specializes in drafting and negotiating construction and real estate contracts.

The biggest mistake companies make when hiring an expert witness is…

Too often, the “professional expert” or academic is retained instead of someone who works day to day in the field.

Jurors like experts who have current and hands on experience in the subject matter on which they are providing testimony.

For example, in a professional negligence case against a CPA concerning the preparation of tax returns, plaintiff retained an expert who looked great on paper – Ivy League MBA, professor at a local university and had published many papers. However, on cross-examination, he admitted that he had not prepared a tax return for someone other than himself in over twenty years.

Our defense expert did not have the scholarly background, but he was the head of the tax department for a good size accounting firm and was involved in the preparation of hundreds of similar returns each year. The jury was far more impressed with the expert who actually did such work than an “expert” who wins the resume battle.


Herb AugerHerb Auger

Herb Auger is a Partner and Head Litigator at the firm of Auger & Auger located in Charlotte, NC. Mr. Auger has been practicing law for 24 years, spending his first 4 working for a large medical practice and construction accident injury firm in New York City. He is licensed to practice in NC, NY, FL and CT and has 3 offices serving all of North Carolina. His firm handles all plaintiff personal matters including injuries from motor vehicle, truck, motorcycle, boating, ATV, golf cart, dog bite, day care, construction site, workers’ compensation and other related accident claims.

The three biggest and most common mistakes that I have run into when hiring an expert witness are…

First, failing to interview or speak with prior clients of the expert witness.

In addition to ascertaining information on their degree and expertise in their field, you will acquire information on their personality and whether it will work with your firm or your client, whether they return phone calls or emails in a timely manner, the pros and cons of their billing practices, their level of attention to detail, their dedication to their work and so on. You will know after speaking with 2-3 past clients on whether it is someone you want to pursue further.

The second mistake is not having a detailed agreement and meeting of the minds on the witness’ fee schedule including travel, hotel and other incidental costs. If their retainer agreement is vague, I recommend that you follow up in writing to address the different scenarios and cost items that you will be accountable for and the expected time frame for payment.

The third mistake that I have run into would be not having a backup witness just in case you run into a conflict with your primary expert. Your witness could become ill on the eve of trial or run into a conflict prohibiting him or her form attending to your case. I always ask them to name a backup witness that they are familiar with that they feel could step in to fill their shoes should an unfortunate event prevent them from attending to our matter.

All three of these issues should be addressed early on in your case.


Cedar BoschanCedar Boschan

Cedar Boschan is a Principal at Green Hasson Janks, an independent accounting and business advising firm, and with her group she provides royalty audit and forensic accounting services. Cedar calculates breach of contract and IP infringement damages and has successfully given expert testimony in music, videogame and patent litigation matters. Cedar is a USC grad who has been a featured media commentator and speaker at the Game Developers’ Conference, Loyola Law School, The California Copyright Conference and SXSW.

The biggest mistake companies make when hiring an expert witness is…

Not choosing one who truly is an expert in the matter at hand, and who is able to achieve the outcomes you need in your case.

Here are some specific reasons why it is important to vet your witness:

1. A highly respected expert encourages the other side to (re)consider settlement
2. Engaging a knowledgeable expert early-on may inform your counsel’s damage theories, complaint drafting, legal strategy, interrogatories, discovery requests, deposition questions and settlement advisement
3. It is a wasted cost when your underqualified “expert’s” report is torn to shreds by an opposing expert or when he or she melts down on the witness stand


James T. Hunt, JrJames T. Hunt, Jr.

James T. Hunt, Jr. is a Partner at Slater Tenaglia Fritz & Hunt, and a business litigator who handles a variety of complex business, commercial and injury cases in New York, New Jersey and Pennsylvania state and federal courts. In the courtroom, Jim routinely tangles with many of the nation’s biggest law firms. He is a frequent speaker on expert witness issues, including the preparation of expert witnesses for depositions.

The biggest mistake that companies make in hiring expert witnesses is…

Focusing too much on fancy educational experience and not enough on communication skills.

Many companies put too much emphasis on finding someone who has a numerous Harvard or Yale degrees on their curriculum vitae. But educational background is just one piece of the puzzle.

To find the right expert for your case, you need to find someone with not only the technical experience and educational background, but also someone who can clearly and convincingly articulate his or her opinion and the reasons for the opinion. Ultimately, the success of your expert – and your case overall – will depend on the effectiveness of how the expert communicates the opinion and underlying bases of the opinion to a jury. The expert also needs to connect the dots to the overall case strategy, making sure that the opinion and reasoning for it will match the overall case theory and strategy.


Thomas J. SimeoneThomas J. Simeone

Thomas J. Simeone is a trial attorney and adjunct professor of trial advocacy in Washington, DC. A member of the Multi-Million Dollar Advocates Forum, SuperLawyers, and the American Trial Lawyers Association, Mr. Simeone is frequently interviewed by the press as a legal expert and has extensive trial experience in personal injury cases, business disputes and family law. He is admitted to practice in the District of Columbia, Maryland and Virginia and the U.S. Supreme Court. Mr. Simeone is also a Certified Public Accountant. Learn more about Mr. Simeone at www.simeonemiller.com.

The biggest mistake people make when hiring an expert witness is that…

They do not fully explore the expert’s opinions or spend enough time playing devil’s advocate and trying to undermine the expert’s opinions and the bases for them.

One needs to remember that experts get paid whether a case is won or lost; accordingly, they have every incentive to encourage a lawyer and client that a case will succeed and should be brought. Therefore, they often give overly optimistic opinions when you first consult with them.

However, after the opposing side starts making its case, an expert often steps back from an opinion or loses his or her confidence. It is much better to spend some time and try to bring out the weaknesses in your expert’s opinions immediately – so that you can fairly appraise the value of his testimony later in the case. This will allow you to make a smarter decision as to whether to bring the case or hire the expert.


Haris ZulqarnainHaris Zulqarnain

Haris Zulqarnain is a Management Consultant at Zulqarnain Group, a consulting firm that provides both legal and management consulting. In his work, Haris helps organizations develop business strategies and also assists organizations in developing litigation strategies.

The biggest mistakes companies make when hiring expert witnesses is…

Focusing too much on length of experience.

Too often, organizations emphasize too much on how many years an expert witness has testified in court or elsewhere. With the proliferation of education, it is not difficult to find well trained, well presented individuals, no matter the expertise. Young professionals are increasingly better trained and better presented, and cost a fraction of their aged counterparts yielding the same results.

Another mistake companies make when hiring expert witnesses is misinterpreting track records.

The testimony given by an expert witness is dependent on numerous factors. Factors that may be outside of the expert witnesses’ control. It depends on the preparedness, aptitude and experience of opposing counsel; the atmosphere of the court room and presiding Judge; and the make up of the jury, each jury member being victim to their own thoughts and experiences. Favourable conditions can lead an expert witness to give favourable results; likewise, unfavourable conditions can yield unfavourable results. These outcomes, however, are not attributable to the expert witness but to externalities outside of their control.

Lastly, seeking out an overspecialized expert witness may be detrimental as
well.

An overspecialized expert witness may understand a particular subject matter very well, however, their lack of breadth of knowledge may render them unable to contextualize their testimony. It is important to have an expert witness who can give testimony that is woven into the suit in its entirety. An inability to contextualize may develop adverse effects.


Philip BecnelPhilip Becnel

Philip Becnel is Co-Founder and Managing Partner at Dinolt Becnel & Wells Investigative Group, a private investigative firm based in Washington, D.C., that specializes in litigation support for attorneys. With a ten-year track record of success, the firm was ranked the “Best Private Investigations Provider” by both The National Law Journal and The Legal Times.

The biggest mistake companies make when hiring experts, in my experience, is…

Not properly vetting them.

Because there is so much information about any given topic on the Internet, there can be a tendency-once you find someone who seems viable ‘on paper,’ so to speak-to just take that candidate’s CV at face value without looking any further.

It is also a myth, in my experience, that there are only one or two experts for any given esoteric topic. Often the biggest challenge is knowing where to look to find experts. By having a larger pool of candidates you can more easily compare their strengths and weaknesses, thereby spending more time verifying their credentials and making sure the person you select best suits your needs.


Stuart LewtanStuart Lewtan

Stuart Lewtan is the Founder & CEO of Zintro, Inc., a global online marketplace with over 100,000 highly specialized Expertise Providers. Prior to founding Zintro, Stuart was Founder, Chairman & CEO of Lewtan Technologies, a 100+ person company providing information & software to the asset-backed securities industry. Stuart was also a participant in the American Securitization Forum’s (ASF’s) SEC’s Regulation AB Committee and has authored several articles and spoken at and chaired numerous industry events. Stuart is a graduate of Brandeis University, as well as a graduate of “Birthing of Giants”, a three-year entrepreneurial think-tank program sponsored by Inc. Magazine, MIT Enterprise Forum and YEO.

The biggest challenge we see amongst the Zintro users who are hiring expert witnesses is identifying someone with deep, specific expertise and impressive credentials, and a frequent mistake we see that stems from that challenge is…

Hiring someone who doesn’t have sufficient expertise in the subject at hand (and subsequently gives unconvincing information and testimony). When hiring an expert witness, it’s critical to be able to pinpoint individuals with very specific expertise and impressive, relevant credentials so that they can be effective and persuasive when it comes to the subject matter they’re testifying about.


David WillsonDavid Willson

David Willson is an Attorney, a Risk Management and Cyber Security Legal Consultant at Titan Info Security Group, LLC., and Partner at Online Intell. He provides risk, cyber and legal advice to companies and law firms facing unique cyber issues. Prior to his current role, he spent 20 years in the US Army as a JAG, and provided legal support to Gen Hayden and Alexander at NSA helping to establish what is now CYBERCOM. He frequently publishes and speaks at many conferences.

The biggest mistake companies make when hiring expert witnesses is…

They don’t interview the witness and determine how that person will come across on the stand. It’s great to have all the degrees and tout vast experience, but when it comes down to it trials are popularity contests. If the trier of fact likes you your credibility increases substantially. When it comes to technology many make too many assumptions and lose the audience either due to assuming they are being understood or their attempt to impress all with their knowledge.


Harlan YorkHarlan York

Harlan York is Former Immigration Chair of the NJ State Bar Association and Former Co-Chair, NY State Bar Association CFLS Committee on Immigration. Mr. York is also the First Ever Attorney in New Jersey to win “Immigration Lawyer of the Year” and he currently serves on the American Immigration Lawyers Association National Practice Management Committee. Mr. York has appeared on CBS, Univision, Telemundo, NBC, and PBS. His website is immigrationlawnj.com.

The biggest mistake companies make when hiring expert witnesses comes down to this…

Both cost and research. Sometimes people look for a “good deal,” which is not best.

I am never surprised but often shocked at bargain hunters for expert witnesses. One easily sees the difference between real experts and those who claim expertise.

Also many folks do research for witnesses like a quick Google search without delving more carefully into the credentials of the expert. This method will result in less than optimal results. “Take your time,” is my advice.

I have served as an effective expert on immigration law for both plaintiffs’ and defendants’ lawyers in civil litigation. Moreover I have given expert opinions numerous times in both state and federal criminal cases.

In addition, I have utilized the services of experts in various medical specialties as well as forensics and finance in representing my immigration clients for nearly two decades. Time and time again, I have been very careful about locating the best expert, not merely based on the expense. Nor have I been hasty in my search.

An effective expert witness can make or break the outcome of a case.

One significant example that comes to mind was an immigration case in which my client was charged with possessing a small amount of marijuana. The lab report was inaccessible. We needed experts to explain how much of the substance is typically smoked socially and the quantity that could actually fit inside a hollowed out cigar.

This was a very specific set of circumstances. We located a former narcotics officer as well as an experienced tobacconist. The case was so compelling that the prosecutor did not even ask to cross-examine our witnesses, relying on their reports instead.


Anthony DellaPelleAnthony DellaPelle

Anthony DellaPelle is a certified civil trial attorney at McKirdy & Riskin with more than 25 years experience. His practice is limited to real estate valuation litigation, in which expert witnesses and their opinions dominate the subject of all cases. Most of the time the only witnesses in his cases are expert witnesses.

The biggest mistake companies make when hiring an expert witness is…

To fail to let the witness know who the boss is.

Often, the best experts are not those with the most credentials but those who understand their role as being part of a legal team in litigation and who are willing to take direction from the other members of the team – the attorneys, the client, the other experts, etc.

In addition, not all experts are right for every situation. For instance, one expert may be an excellent choice in a jury trial but not before a judge or arbitration panel. The key is to understand the audience and to play to that audience.

Before a jury, an expert must be likable and easy to understand. The best expert will also be polite and not combative, but willing to stand firm on his or her opinions without being offensive. Big, fancy words don’t always work well. In front of a judge or an experience arbitrator or arbitrators, technical expertise may matter more than the words that are used in the expert’s testimony.

Regardless of whether the expert testifies before a judge or jury, a good expert will need to keep the audience interested in the testimony and must be capable of being a great teacher without sounding condescending. Companies must pick experts who are not only experienced in their field, but can easily explain the topic to others.


Wesley ToddWesley Todd

Wesley Todd is an Attorney with the law firm, Todd Legal, P.A. in Tampa, FL, and he is also the Founder of CaseGlide, LLC, a litigation software provider.

The biggest mistake you can make in hiring a legal expert is…

Not promptly doing your own due diligence.

Don’t rely on someone else’s word. Before you hire an expert witness, call her, set up an appointment, meet with her face-to-face, ask her tough questions, and look in her eyes while she answers.

Credentials will get you nowhere. You need someone who looks and sounds like they’re telling the truth.

One of the biggest traps here is to rely on someone’s credentials and not meet with her until the other side takes her deposition. The people with the best credentials – degrees, certifications, expertise – are usually the people who have trouble communicating in a simple way that sounds believable to the jury.

Furthermore, someone with great credentials may have too deep of an understanding of a subject, and therefore be unable to explain it to the jury. If you wait to meet the expert until the other side is taking her deposition, you are taking an enormous risk.


David GreenbergDavid Greenberg

David Greenberg is the Legal Liaison for the Law Offices of Gary A. Bemis and an awarded international expert on commercial regulation and litigation with over 40 years experience in commercial collections. As Former President of the California Commercial Collectors Association, David served on the panel of commercial arbitrators for the American Arbitration Association and the Council of Better Business Bureaus, while also remaining active in the US Air Force Reserve.

Hiring an expert witness is sometimes a necessary ingredient to being successful in a contested litigation. An expert witness, in commercial cases, is used to support an argument being made about very technical industry issues and standard practices. My advice when hiring an expert witness is…

To ensure that any agreement you obtain from the expert witness should be accomplished in writing and should hold all the terms and conditions for the witness’s provision of testimony:

1. Will written testimony be obtained.

2. Will the expert be required to appear for depositions and trial

3. Will the fee be all-inclusive or broken down into staged components (so much for written testimony + so much for appearances, etc.)

Failure in gaining a sufficient engagement agreement can result in severe misunderstandings with the expert and if that happens it could lead to adverse testimony obtained from by the other side. As with all agreements, get them in writing and have counsel review them.


Aaron L. PeskinAaron L. Peskin

Aaron L. Peskin is a Partner in the Ferrara Law Group, P.C., a law firm located in Trenton, New Jersey. Mr. Peskin specializes in complex commercial litigation, construction law, and employment litigation. In addition to his general litigation practice, Mr. Peskin has significant expertise in e-discovery, counseling clients on various issues such as social media and technology usage in the pre-litigation context, and also managing the e-discovery process from issuing litigation holds and document collection through production.

One of the biggest mistakes I have seen in hiring expert witnesses is…

Not taking the time to determine if the potential witness would be good on the stand.

Most expert witnesses look good on paper. They would not be hired as experts if they did not. But that does not necessarily mean that the individual would make a good expert witness.

What is the witness’s speaking style? Does the witness make a good impression on the judge and/or jury? How would the witness hold up on cross-examination? These are the sort of questions that determine whether someone will make a good expert witness, and all the qualifications in the world will not overcome one of those deficiencies.

Companies looking to hire expert witnesses should take the time to make sure that the person hired will be an effective witness at trial. If the witness is not effective, you risk boring a jury to tears, causing the jurors to simply tune out the expert testimony. An effective witness will not only be knowledgeable on the subject matter upon which he or she is opining, he or she will also have a good rapport with the jury, keeping them engaged and interested in the testimony.


Walter L. ZweiflerWalter L. Zweifler

Walter L. Zweifler is the Senior Financial Appraiser and Chief Executive Officer of Zweifler Financial Research. He has been active in the appraisal profession since 1976, initially with Marshall & Stevens, Incorporated. In 1980 he earned the designation of Accredited Senior Appraiser in the American Society In 1982 he organized Zweifler Financial Research, a division of Zweifler Appraisal Service, incorporated. Previously, Mr. Zweifler was a Financial Analyst with W. E. Hutton & Co., Bache & Co., Muller & Co., Piper Jaffrey & Hopwood, Applied Portfolio Strategy and the Amivest Corporation. Mr. Zweifler’s testimony has been accepted in Tax and Federal Courts as an expert witness for the Internal Revenue Service and for a broad array of tax payers.

To get a top expert witness, you need the following:

1. Skill in defining the issues and innovative talent in suggested responses

2. An expert who has appeared in Federal, tax and state trial courts – like us

3. Complete objectivity credentials with your opponent, his attorney, your client and your firm

4. Another lawyer, accountant or professional, who has retained the candidate expert who will discuss the credentials


Richard KlineRichard Kline

Richard Kline is the Chief Legal Officer at Lawyerreviews.com. Richard has a full background in litigation strategies and also is a Publisher of several legal publications on the Internet.

The biggest mistakes I have seen companies make when hiring expert witnesses fall under two categories…

THE EXPERT MUST BE INDEPENDENT

A common mistake that is made when hiring an expert is to try to get the expert onto your side. It is critical when hiring an expert to make sure that he or she has a full knowledge of all the underlying facts.

At the minimum, the expert should have access to all facts that are relevant to forming an independent opinion. It is important that the expert investigates all the facts and question any assumptions that are presented by the attorney that is requesting the opinion. An expert should be allowed to form an independent opinion that is unprejudiced and without any bias.

SOUNDING TOO MUCH LIKE AN EXPERT

An expert witness should be able to explain his opinion in concise language that is understood by the layperson. An expert that sounds too much like an expert but cannot relate to the jury is going to have the effect of diminished testimony. Although an expert needs to be credible in order for his testimony to be valued as an expert, there is no need for an expert to use complicated jargon that will only serve to confuse the jury.


Ben LevitanBen Levitan

Ben Levitan is an expert in cell phones and wireless cellular telecommunications and acts as an expert witness in civil, criminal and patent infringement matters. He hold 30 patents and 4 trade secrets in the area of cell phone networks and technology. Learn more about Ben’s work at www.ThatCellPhoneGuy.com or www.BenLevitan.com.

I’m an expert witness in the area of cell phone technology and I see a lot of really bad experts in court that embarrass their clients. My #1 piece of advice for companies looking to hire an expert witness is to ask themselves…

Is this person a TRUE expert?

The courts are pretty lenient on allowing someone to be an expert. The standard is generally that the person possesses “more knowledge than the average person” on a topic and that information required to be understood by the jury. Lawyers (and Jurors) can easily be impressed by someone will a little knowledge.

Check out the expert. A simple Google search for the expertise should bring up his/her name IN RELEVANT search results. This means their name comes up in the context of their work and not in the context of their advertising or other trials where they have been a witness. People claim to have testified in dozens of cases. That doesn’t mean they knew what they were talking about.


Martin A. GinsburgMartin A. Ginsburg

Martin A. Ginsburg is a Paralegal Nurse Consultant and Founder of MarGin Consulting. In his role, Martin is able to bring together healthcare/medical perspective with the education and experience of a paralegal to conduct preliminary primary law research relevant to the matter under consideration. Martin is also a veteran of the United States Air Force, and his diverse life experience is applied to all investigations to ensure the most thorough and in-depth review available.

The biggest and most common mistake made by law firms in hiring an expert witness is…

Waiting too long to begin the selection process.

Medical providers seeking reviews for Quality Control or Improvement for reasons of compliance with regulations make also make this mistake.

Attorneys and law firms often seem to believe that quality reviews can be completed in-house and only seek an outside expert to put on the finishing touches. Like the practice of law, healthcare and medicine require experience to fully understand. Despite the education level of attorneys and the, generally, broad life experience of their professional staff, subjects in which they are not experts should be placed with an appropriate expert early in the process to prevent costly and time consuming work that may prove fruitless.

An inventor develops a waste-to-energy process. Which expert to choose; mechanical, chemical, chemical process, or civil engineer? That would depend on which part of the process requires review, and whether that review or component requires additional component review. The earlier the selection process begins, the more likely to secure the services of the appropriate expert and have time to receive a quality report.

In medically related cases, not only timely expert selection, but cost-effective expert selection is also important. A physician expert may reveal unrecognized interactions between pre-existing and new diagnoses. A legal nurse consultant can review medical records more cost effectively than a physician, as well as summarize those records to focus the review of the physician, however; the physician expert is vital to ensure no diagnostic or practice standards have been inappropriately excluded.

All of this review by experts takes time. Waiting until there is insufficient time to render a valid opinion eliminates any value that opinion might have had.


Christopher English HuganChistopher English Hugan

Christopher English Hugan is a litigation and transaction attorney at Hugan Law, a Nashville-based private law firm, who focuses on trademark, copyright, entertainment, and general business matters.

When it comes to the hiring of expert witnesses, I generally see two common mistakes:

The first is the failure to fully vet the expert’s prior expert opinions. There is nothing worse than finding out on cross-examination that the expert took a different position on the identical issue in a different case.

The second is to ignore that we live in a pop culture and disregard the expert’s baseline likeability. We all hope that jurors form opinions based on the evidence and the law. Nevertheless, I am convinced that they often vote an expert “off the island” based on physical attributes and first impressions.