Look for good communicators when expert hunting

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By Nancy Crotti
Dolan Media

How do you choose an expert witness? Many attorneys ask their friends, post a request to an online plaintiffs’ or defense list-serve, pay a firm that supplies expert witnesses, or troll for professors on the websites of local colleges.

Once you’ve found someone, you need to do more than make sure the expert witness knows the topic well. You must ensure the expert is able to convey that knowledge clearly to a jury.

“The jurors don’t know what it means to be the best in your field,” explained Diane Wiley, president of the National Jury Project, a Minneapolis-based trial consultancy firm. “What they’re looking for are people who have hands-on experience with the subject matter and who can communicate.”

If the attorney doesn’t understand what a prospective expert witness is talking about, chances are the jury won’t either, Wiley said. “A lot of people are good experts but they’re not good teachers,” she added, “And that is really key, because if the jury can’t understand what they say and follow them, then it doesn’t really matter what they say.”

A clear communicator can really help your case, according to Wiley. “You need to be looking at the expert from the jurors’ point of view, not from your point of view — stepping back and looking at it and saying, ‘How is somebody who’s never heard a word about this case or this subject matter going to look at this?’” she said. “It’s rare that an expert wins the case for you, but an expert can give the jurors who are on your side the arguments that they need to argue with the other jurors.”

Above all, an expert witness must be neutral, according to John Sonsteng, who teaches trial advocacy at William Mitchell College of Law in St. Paul. While serving as a county attorney in Dakota County, Sonsteng said he had “shadow experts” — a psychiatrist, psychologist and engineer — to whom he would present the facts of a case and ask if it was worth trying. If the shadow expert gave the go-ahead, Sonsteng would contact a prospective expert witness without disclosing whom he represented, present the facts and ask for an opinion.

“I think you’re looking for good, strong, neutral experts,” Sonsteng said. “I don’t want to bring a case in when my expert is vulnerable to cross-examination.”

Experts are challenged in most cases by the opposing party, said Bob Gilbertson, a partner at Greene Espel Attorneys and Consultants PLLP in Minneapolis. They must bring the same discipline to litigation work as to their other professional work, according to Gilbertson, who specializes in commercial litigation and once taught a continuing legal education class on the court’s role in allowing an expert witness to testify.

“Really, I think what you want in an expert is a combination of someone who has credibility, in part because of what courts need to evaluate whether the person can testify, but also someone who’s a good teacher,” Gilbertson said. “And you really can’t evaluate that without interacting directly with the potential expert. Before I hire an expert, I always meet with the person to talk about their background and, at least in general terms, about the case I have in mind … Part of why I do that is I want to see for myself how the person explains complicated ideas.”

Wiley cautioned attorneys to check a prospective expert witness’s website before hiring the witness, in case a rogue juror looks it up or the adversary gleans information from it to use against your side. She also warned against arrogant experts, who can be difficult to work with and can even try to take over the case.

“The lawyers need to be the ones to control the case,” Wiley said. “Experts don’t necessarily know how to run a trial.”

Jurors can also tell when an arrogant expert doesn’t really read the case materials closely, especially if it’s a medical malpractice case. “It can be significant to the jurors,” Wiley said.

She has found that jurors may bristle at an expert with a strong Southern accent or respect one with a New York accent, and that they don’t like experts who appear to have an agenda.

An expert witness may be a professor or someone from the industry and needn’t necessarily look professional, according to Gilbertson. He recalled a case he tried 10 years ago that involved complicated engineering principles. “The main expert I used was a guy who wore a pony tail and who probably hadn’t worn a suit in decades, but the jury loved him,” Gilbertson said. “Even though he didn’t look the part, he was extremely effective.”