Choosing Experts to Withstand Legal Challenges

Here is a checklist you can use to insure you've chosen scientific experts whose backgrounds will help you withstand challenges based on Daubert and Frye:

• Does your expert have strong academic credentials? Is he recognized by his peers as someone who stands out--someone who has received awards, appointments, and other honors and distinctions?
• Does he have actual working experience with the precise issue or issues about which he will be testifying?
• Have you done your own independent research into your expert? Since your opponent might attempt to verify every claim on his C.V., you should too.
• Have you attempted to find everything written by or about your expert to see if any of it will be inconsistent with his testimony? Have you asked him for his previous depositions? Have you looked for them yourself?
• Have you tested the quality of your expert's written work to see whether it was peer-reviewed and appeared in reputable publications?
• Have you run a Lexis/Nexis search on your expert to see what you can find?
• Is your expert someone who will be able to communicate complex subjects to a jury?
• Does the expert have time to talk to you?

Many of these tips can also be used to investigate your opponent's experts as you prepare to take their deposition.

Source note: The format and contents of this post were suggested by a paper presented by Vance Andrus, Richard Arsenault, and Donald Marks, M.D., at a Mealey's litigation conference.

Comments

[Jeannie Elliott]

All of these are good tips on choosing an expert, but may need to be adjusted when looking at non-medical experts. For example, in the economic damage realm it is relatively rare for economists to actually write or publish articles on the precise damage issue that is involved in the case.

The Economists @ www.lostcompensation.com

[Joe Bickley]

I think one of the most critical things is do you respect your expert's judgement-do you trust your expert?

I do mostly construction defect litigation, and that is hugely dependent on expert testimony. In my mind the key factor is whether the expert is a good teacher. He must be able to credibly explain structural engineering to a bored housewife. Ultimately juries are more impressed with the arguments the understand than the ones delivered by a well papered academic.

I think the point about practical expereince is critical. In my practice I always try to hire two experts-one intellectual and one practical (sometimes one guy is both-but I'm a California lawyer and I also like having one local guy). For example in a welding case I will use a materials engineer, but I think going inot the court room without some guy who has done 10,000 more more welds is suicide.