Vetting the Witness

Unlike the fact witness, who is prohibited from voicing an opinion in court, the expert witness is present in the courtroom to do just that.  He or she possesses a specific skillset or knowledge in some science, trade, art or profession and his or her testimony is intended to influence the course of the trial favorable to his client.  While expert witnesses can come from every conceivable field of endeavor, they are most often enlisted from the science or engineering disciplines.  Experts present their qualifications and are challenged during the trial process, so they must be prepared to demonstrate their particular expertise as it relates to the issue at hand.  His academic credits, articles published and work experience all go into vetting the expert, but it is the Court that decides to allow or deny testimony upon review of those qualifications and, of course, relevancy and prior acceptability of that type of expert testimony.

But let's back up a bit.  Expert witnesses don't just randomly appear in court.  The effort put forth behind the scenes to locate and engage the expert is where the real work is done.  Choosing the best expert witness is the trick and it can be a difficult task.  First, we need to narrowly define the area of expertise we are researching.  Then we try to match the person to the problem.  An attorney friend once told me, "Expert witnesses are like leaves on the trees.  They are everywhere.  To fit the best expert into my case I have to go from the trunk to the branch to the twig before selecting the right leaf" In short, it takes patience and intuition to do it right.

Of course, one can always go to The American Trial Lawyers Association for experts.  ATLA will provide you with lists of experts in every field imaginable.  There are other expert lists available, too.  These experts hire themselves out to law firms deriving a significant percentage of their income from paid trial testimony.  There is, however,an inherent danger in hiring from these expert lists.  These so-called "hired guns" testify so often that their past testimony can come back to haunt them.  With every case having its own particular nature, experts often nuance testimony to fit the occasion.  It is these moments that offer opposing counsel the opportunity to challenge the witness with his own words from previous conflicting testimony.  Ergo, expert witness prior trial or deposition testimony is where the gold is mined!  More on opposition research later.

Choosing the "right leaf" for your case involves on-line research, making contact with colleges and universities and interviewing potential candidates.  Background research and recommendations from colleagues help, as well.  We want an expert who not only knows and can articulate on the subject well, but recognizes his own limitations.  We love the expert who is willing to say, "I don't know ... that is outside my field" He won't be caught in the ego trap.  Personal appearance, demeanor and jury appeal should not be overlooked,as it is only human to like the message along with the messenger.

Opposition research on expert witnesses is rather straightforward.  Normally, we have the opposing experts CV, so we use that as a starting point.  After verifying his academic credentials, we review all he has published as it relates to the issue at hand.  We locate his past testimony in other cases and learn from his opposing past experts and the lawyers involved in those cases.  Where possible we obtain deposition or trial transcripts.  It is not unusual to find he has taken a specific stand on an issue only to find conflict with what he is putting forth in the instant matter.  In short, we try to bury him with his own words.

In a Use of Force matter we researched for Albuquerque, NM Attorney Robert Becker, a banker boxful of material we provided continues to provide fodder to other lawyers on similar cases debunking a particular hired gun-type expert in police shooting cases.

Vetting the expert witness is challenging, time consuming and can be complex.  Having the "right leaf" on your side can make a difference;but getting the low down on the opposition is priceless.

Dave Watts is a Certified Legal Investigator in New Jersey. For over 30 years he has conducted all types of investigations for law firms, businesses and individuals. He and Linda, his wife of over 50 years, live in both Califon, NJ and Sanibel, FL. He can be reached at (800) 950-4808 or

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