Hiring An Expert Witness: What Not To Do
Written from an expert witness perspective, an article in law.com provides some excellent suggestions for attorneys who are looking for an expert’s opinion.
The article consists of a seven suggestions for what attorneys should NOT do in hiring the expert, such as:
*Wait until the last minute to hire the expert. An expert hired earlier in the case may help provide a lot of guidance in shaping the case (my personal experience confirms this as well; while an attorney may know a lot about employment law, the attorney is less likely to know the technical/scientific details and theories).
*Go “bargain basement.” Don’t try to bargain with the expert over fees and time spent on the case (my personal experience is that good attorneys don’t bargain over their fees and don’t negotiate over the hours they spend on your case, either. Go with proven expertise and good references).
*Fail to provide all of the necessary information for the case. Make sure the expert gets the information he or she needs to form an opinion. Information that the expert failed to have can hurt him or her down the road (my personal experience is I would rather have more information than less information).
*Ignore the differences between law and science. There are certain key differences between law and science and the attorney needs to be aware (my personal experience is that these differences are often not known, let alone understood. It requires communication on both sides to understand one another.
I was once quite surprised to hear from an expert (in computer forensics) that I was the first attorney to truly share the “big picture,” explaining how his work fit in with the legal and factual issues, and the overall case strategy.
This disclosure on my part created a very open, cooperative, and ultimately successful working relationship.
So I would add that it is important to provide not only all the information needed to form the expert opinion, but also a good sense of perspective as to how the expert opinion fits into the case.
Perhaps some would disagree, fearing this would look like attempting to influence the expert opinion.
But I would trust the expert’s integrity to resist such influence, and would argue such knowledge may yield a btter analysis by the expert, not necessarily a more favorable one.
Any thoughts, Michael, or others?
I think the downside to your perspective is that the expert does not have attorney-client privilege. Thus, any communications could be discovered. That I see as a possible risk to revealing everything.