Expert witnesses are crucial in the courts, as juries require precise explanations for more complex arguments. However, there is limited consensus over what makes an excellent witness. David Solomon of GLG Law identifies four qualities to look for: straightforward communication, coachability, confidence, and candor.
Ask a dozen attorneys what constitutes an ideal expert witness, and you will receive twelve different responses.
Some oppose the use of first-time experts without prior testimony experience, whilst others prefer the absence of a track record to criticize. Others favor the professorial method to “teaching” a fact-finder about a difficult subject, while many avoid academics for fear of the “Ivory Tower” dilemma.
Practically all litigators concur that experts must be reputable and educated in their respective fields, and that a superb expert is crucial to achieving a good outcome in complex litigation.
Beyond the obvious, however, there is little agreement over what makes a must-have. This is a difficulty for attorneys, as the importance of specialists has never been higher than it is now, as more disputes than ever hinge on understanding complex subjects, such as the nuances of a complex financial transaction or how a certain technology differs from others.
How does a litigator identify an expert’s must-have characteristics in a context where choosing the appropriate expert is more crucial than ever and a misstep can be disastrous? And how should attorneys evaluate prospective experts for these qualities, particularly during limited preliminary conversations?
A excellent starting point is the “Four C’s”:
No matter how knowledgeable an expert may be, he or she must be able to communicate in-depth subject matter knowledge to the fact-finder. Knowing the inner workings of a complex subject does not always imply that one can adequately describe it to non-specialists or laypeople.
As the complexity of technical specialty increases, it becomes increasingly crucial to choose a communicator who is clear and precise. The top experts are able to talk technically and eloquently not only to their professional peers but also to those with no prior knowledge of the subject.
Check for it: Request that the recommended expert explain a topic within his or her expertise to you and your litigation team in a time-bounded period, particularly on a topic with which you and your team are unfamiliar. Ask further questions. How did the expert fare when communicating something complicated to the uninitiated in a narrative format? Through their responses to queries, was he or she able to clarify murky areas?
By definition, experts are typically the sharpest persons in the room, and they frequently wield control over how things are conducted around them.
However, litigation is a team game. Experts who work effectively with others, in a matrixed setting, and under pressure are a gift to a litigation team; an expert who views himself or herself as the sun around which the rest of the case revolves can soon become a hurdle to be carefully negotiated, or even a liability.
Whether an expert has testified hundreds of times before or never before, a litigator will almost certainly need to provide them with feedback and guidance on how to present themselves most effectively and completely prepare. The expert who is worth her salt appreciates teamwork and incorporates constructive feedback in order to maximize performance and effect.
Ask experts how they prefer to receive constructive criticism and for an example of a time when receiving such input improved their job performance. Professionals that work well in a team atmosphere and are receptive to and encourage feedback will be able to provide concrete examples of how this has improved them, whether in a lawsuit scenario or not.
Experts may have mastered a certain topic, but it is crucial that they present the information with confidence (but not arrogance). One might assume that a confident demeanor and straightforward communication go hand in hand, but this is not always the case.
Occasionally, a clear communicator may appear competent but lacking in confidence, or, more problematically, extremely confident.
In an adversarial proceeding, where another credentialed expert will refute many of the expert’s points, the fact-finder must not only find experts credible, but also believe that they have mastery of the subject and confidence in both their conclusions and themselves.
In many ways, confidence is subject to the Potter Stewart test; you will recognize it when you see it. However, requesting an example from the expert’s professional experience in which he or she had to overcome a challenging hurdle, predicament, or obstruction might provide insight into the expert’s confidence and tenacity.
Lastly, but probably not least, openness and transparency are undervalued as successful expert personality attributes.
Good experts can articulate their knowledge and argue persuasively for their perspective. A brilliant expert will not only be clear on what he or she knows, but will also be able to evaluate the relative qualities of a position, opinion, or viewpoint in a fair and balanced manner.
Check for it: Ask experts about a period in their careers when they had to deliver undesirable results or a negative conclusion. How did they plan for the discussion? What was the strategy? How confident were they in giving candor and openness to an audience that desired alternative news?
Expert selection is both an art and a science, and each litigator, case, and client is unique. Ultimately, the most crucial factor is selecting the expert in whose advocacy you and your client have faith. Hopefully, the Four C’s will assist you in reaching a more reliable decision.
Real Estate Expert Witness Services by Craig Cherney, Esc.
Craig Cherney is a trusted client advisor and a sought after real estate expert witness who is hired by the nation’s top Real Estate Litigation Attorneys to help resolve their litigated real property matters. Craig has appeared as a testifying expert witness before judges and juries in California, Arizona, Nevada and other jurisdictions across the country. Craig Cherney, Esq. Expert Witness Real Estate. 480-399-2342.