The Compromised Expert
The last post addressed a New York Times piece that aired longstanding criticisms of the U.S. legal system’s use of expert witnesses at trial. The article included a quote I found intriguing from one expert witness: “‘After you come out of court,’” the witness is quoted as saying, “‘you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.’”
That’s what I would call a compromised expert. Such experts should be avoided. Courts want specificity in how an expert witness reaches a conclusion and so, too, should the attorney who hires him or her to testify.
This is where selection of an expert witness becomes fundamental to your strategy. The expert, if shown to possess education or experience in a particular field, and if he demonstrates unwavering confidence in his opinion, can save the day and destroy the adversary by rendering a lethal opinion—one that is capable of withstanding a “compromising” question.
Sometimes the urgency to locate an expert obfuscates the importance of selecting the right one. Developing a theory of the case and identifying the specific need for experts early on can give you a leg up in the quest. The more time, the better. Check with colleagues, examine the internet for groups online that speak to your subject, and contact bar associations who retain lists of experts. You can also draw upon the assistance of a consultant to help locate a credible witness.
Before interviewing candidates, be certain that you have developed the theory of your case and have a clear idea of the opinions you seek. One technique is to leap forward in your mind to the trial. Imagine the closing argument and how you plan to describe to the jury the views of your expert. This type of exercise helps you focus precisely on your needs.
As you begin dialogue with the expert, you should not shy away from any areas of uncertainty he or she may have about the questions at hand. You want to fully understand and deal with the weaknesses in your case, not pretend that they are not there. An upstanding professional should level with you from the start.
That’s crucial, because every word spoken by an expert witness is measured and the slightest error attacked by your opponent. A compromised expert can easily be cut down to size during cross-examination. Then your ethos with the jury, as well as the expert’s, will plummet. Avoiding this misfortune depends a great deal on finding the right person to bolster your case and responsibly assessing weaknesses in his or her opinions.
Maryland Discovery Problems and Solutions
