Plenty of attorneys have heard the unfortunate story of an expert witness who promised to deliver persuasive, comprehensive and effective testimony, and folded under the pressure of a deposition, courtroom, or worse, contradicted their own argument. When a complex matter involves commercial damages, the consequences of hiring the wrong expert can be costly. However, if screened properly, an expert witness can become a focal point for an attorney’s commercial damages case. These five critical questions highlight what should be considered when selecting an expert to put on the stand.
Does the witness have experience testifying in similar industry cases?
In a case involving commercial damages, it’s imperative that the witness has testified previously, perhaps numerous times, in comparable arguments. Truly superior testimony comes from a professional with experience in the case’s niche area of argument, industry or service. Prior familiarity will lend additional credibility and ensure the witness can provide informative statements. However, even this doesn’t automatically qualify them. What was the outcome of their prior testimony? Did the court admit it, or was there a Daubert challenge? Hiring an expert is only useful if their testimony can be heard in court.
How strong is their professional reputation?
Knowing your expert witness’ complete professional background is critical. No lawyer wants to put an expert on the stand and convince the jury that the person is a highly respected leader in their field, only to watch the opposing lawyer reveal information that immediately discredits their witness and potentially tarnishes their case. Be vigilant in reviewing their background. Their education, titles, published works, honors and professional organization affiliations are all accomplishments that can be indicative of a good reputation and can add to the expert’s credibility in court, as well as increase their chances of successfully undergoing voir dire.
Do they have qualified professional experience and the proper credentials?
The witness you select is being presented as an “expert,” and their prior testimony experience should help add credibility and knowledge to your case. Moreover, every expert witness should have relevant professional qualifications that indicate professional training, education and credibility, whether they’re a Certified Public Accountant (CPA), Accredited Senior Appraiser (ASA), Chartered Financial Analyst (CFA), Accredited in Business Valuation (ABV), Certified in Financial Forensics (CFF), or a Certified Valuation Analyst (CVA). One designation may be more desirable than another, however, depending on the case. For instance, testimony from a CFF would carry the most weight in a case involving fraud.
Can the witness be counted on to collaborate?
Even with the best credentials, a perfect professional record, or a dozen prior opinions in related cases, if the witness and attorney can’t collaborate, the entire endeavor could fall flat. Lawyers need to lean on their experts to discern how best to address precise topics or subjects and learn why a question presented a certain way could deliver a more powerful statement. The witness and attorney must trust one another for guidance and clarity on subjects in which they are not as familiar. Both parties have something to learn from one another.
Can the witness successfully communicate information?
The most important responsibility of any witness is to publicly testify in court. A great expert witness will quickly help the judge or jury not only understand the content of their analysis, but also illustrate why it supports their expert opinion. If a witness cannot translate technical information into language that the court can understand and absorb quickly, or provide conclusions that won’t withstand cross-examination, their credentials will mean very little. And in a worst-case scenario, could hurt the overall argument.
Above all, perhaps the most difficult part of the vetting process is to be thorough when deciding on an expert witness. It’s easy to be swayed by career accomplishments, degrees, or a brilliant reputation. But the witness’ resume isn’t what will determine whether their testimony resonates with a judge or jury – their ability to communicate objective testimony that clearly supports their expert opinion will decide that outcome. All else considered, if an attorney and expert are working as a collaborative team with mutual respect for one another, both the legal team, and most importantly the client, will be equipped to build the strongest case possible.