Is That Expert as Great as You Think?
A great deal of work goes into preparing an expert witness for trial. Typically, there are many hours of discussion and preparation before an expert ever sits for a deposition or submits an expert report. But often, most of those hours are spent with only one or two attorneys. And equally as often, those attorneys played a role in “discovering” or “acquiring” the expert. Unfortunately, the resulting relationship can make it difficult to see the expert’s weaknesses until they are exposed in deposition or in trial.
Finding a great expert isn’t easy and no witness is perfect, but for an expert witness to be helpful, they must be persuasive enough to overcome any “issues” they come with. Most of us understand that a multitude of things—from demeanor to financial bias to previous testimony—can undermine an expert’s credibility. But that somehow doesn’t prevent the all-too-common situation of either 1) working up an expert for a very long time before realizing that he/she will never be trial ready or 2) producing an expert at trial only to have his/her testimony go south.
More times than we care to admit, we have heard great things about experts only to meet them close to trial and discover a problem that is insignificant to attorneys, but will be glaring to jurors. And too often, at that point, it is too late in the process to make a change. But why is it so difficult for attorneys to predict an expert’s probability of success early on? Because jurors and attorneys evaluate experts differently.
Attorneys begin their search with an end in mind. And while they may not directly guide the expert’s opinions, they definitely seek out experts who are going to be case-friendly. (Of note, these experts are often found because they’ve had a financial relationship with the defendant previously or they are known to be a big user/prescriber of their products.) Jurors, on the other hand, are starting out with a different—and unfortunately, sometimes opposing—perspective. This makes it is imperative to have someone on the outside cast their eyes on an expert early in the process. Neither we—nor our clients—have ever regretted that we met with an expert early in the process. But on many occasions, we have had to be the bearers of very bad news about an expert’s ability to be an effective witness after countless billable hours were spent preparing him.
Because experts are usually such an integral part of your case and because a great deal of time and money goes into finding and preparing an expert, we’ve rarely seen clients more upset than when they realize that an expert who has been worked up for years cannot be used because of an issue that has previously been discounted. Or even worse, when something in an expert’s background or opinions negatively affects the outcome of a case. While this is not an uncommon problem, it is one that can be resolved by taking the right precautions. Because it’s never too early to learn that an expert will not be a great witness at trial.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.