The Effectiveness of Your Expert Witness Could Win or Lose a Case for You

And, obviously, if you don’t win a lawsuit, you have spent time, effort, and a lot of money needlessly. As an expert witness, my side has never lost a case. Surprisingly I have won on the same issues both for the plaintiff and for the defendant.

One of the first steps in evaluating your expert is looking at his or her education and experience. What was her result in all of her cases? Did her side win them all? This is something often overlooked. You have to go with a winner. Have they won on both sides? That would be a real plus because it is highly unusual.

These days, it’s not uncommon for organizations to exist simply to generate revenue. They may offer a “certificate,” but a close examination could reveal that it’s nothing more than a “credential” that someone can purchase. Sometimes less is more when it comes to credentials. Don’t assume that

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someone with eight sets of letters after her or his name is indeed qualified to be your expert witness. How have they performed at depositions and on the witness stand? Look at their cases.

Next, it is important to look at a potential expert’s work experience and case history. The person should have experience in the field in which she or he will testify. Be careful when selecting a “firm” for your engagement. Who will be working on the case? If you select a firm, rather than an individual, you run the risk of having the work done by someone with little or no experience in the field. There is a risk that goes along with inexperienced staff, and you need to be aware of this when selecting an expert.

Someone with good technical qualifications isn’t necessarily the most effective expert in a courtroom. That is why you should look at the testimony history of the individual, and ensure that she or he has significant deposition and trial experience.

Some witnesses offer expertise in particular industries, while others may have no industry specialty, but possess subject matter expertise. For example, a fraud investigator may focus his work on the hotel industry. Depending on your case, this depth of knowledge of hotel operations may be critical. In other cases, however the industry may not matter much, but profound knowledge of fraud schemes may be essential.

Experience in litigation should be a requirement when selecting your expert. It is important to have someone who is familiar with the litigation process and can anticipate the work that will need to be done. An experienced expert witness can advise you on potential pitfalls in your case, as well as areas of weakness that could be attacked in depositions and at trial. You do not want a hired gun. Someone who earns his or her living as an expert is suspect. It is much better to get someone who has won cases but who writes, teaches etc, in the field.

It is very important to have a published expert; his peers view one who gets published as an expert. Better yet if he has authored books published by well-known publishers. I would be suspicious of someone who is self-published. He or she wasn’t good enough to be published by a legit publishing house.

Selecting your expert based on an advertisement brings more risk. Everyone puts their best foot forward in advertisements, so there is no way to gauge how good the expert really is. An expert who writes articles for trade publications or websites offers the attorney a chance to preview her or his expertise. Based on the expert’s writings, you can probably make a fair assessment of how knowledgeable she or he is, and this is a good first step in selecting an expert. Google them field and find someone who gets published a lot on the topic that you are seeking an expert in.

Regardless of how you find your expert, take the time to talk with her or him in person or on the phone. Ask questions about prior litigation experience, potential approaches to your case, and possible strategies for winning your case. Request current curriculum vitae, a list of publications written by the expert, and a history of testimony; if they have lost a case, why?

Carefully evaluate these things, and follow your gut instinct about the expert’s reliability and capabilities. If you don’t select a winner, how can you expert to win your case.

The information provided herein is not intended as legal, accounting, financial or any type of advice for any specific individual or other entity. You should contact an appropriate professional for any such advice.

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ABOUT THE AUTHOR: Lance Wallach
Lance Wallach, National Society of Accountants Speaker of the Year and member of the AICPA faculty of teaching professionals, is a frequent speaker on retirement plans, financial and estate planning, and abusive tax shelters. He writes about 412(i), 419, and captive insurance plans. He speaks at more than ten conventions annually, writes for over fifty publications, is quoted regularly in the press and has been featured on television and radio financial talk shows including NBC, National Pubic Radio’s All Things Considered, and others. He does expert witness testimony and has never lost a case.

Copyright Lance Wallach, CLU, CHFC

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.