When it comes to litigation involving complex scientific issues, the success of your case is highly dependent on the quality of your testifying experts. Over the past 25 years, we have identified and recruited hundreds of testifying experts for cases of all types, including toxic torts, pharmaceutical and medical device litigation, patent disputes, and consumer fraud actions.
Based on our long-standing experience in this arena, we have identified the following 10 characteristics of an effective expert witness (and, for some reason, they all coincidentally begin with “C”).
- Credibility: If a judge and jury believe the expert, so many other important traits become secondary. Many independent factors (some of them listed below) combine to add to the credibility of the expert witness including credentials, communication, regional appeal, and charisma. But ultimately, in order to be most credible, these individual traits must combine to instill a feeling that the expert is honest and authentic.
- Credentials: We have seen many experts from outstanding institutions do well on the witness stand but also have seen experts from lesser known academic centers perform equally well if they have the right credentials. These credentials can include specificity of research activities, involvement in relevant committees, leadership roles in prestigious professional societies, and the number and quality of publications in reputable journals.
- Communication: Effective communication with a judge or a jury is not simply eloquent delivery but also establishing a robust connection with the audience. Some of the most effective experts have the ability to draw from their teaching experiences and years of working with and lecturing to students. The bottom line is that sometimes it pays to focus on “teaching awards” as opposed to professional awards and recognition by the research community.
- Conviction: It is essential that the audience (whether it be judge or jury) perceive that the expert strongly and passionately believes in the opinion he is delivering. If the audience takes away the sense that the expert is indifferent or apathetic toward the testimony, it will leave them with the sense that the expert is simply “bought and paid for.”
- Critical Thinking: While conviction is clearly a critical trait, it must be balanced by a willingness to consider alternative opinions, approaches, and data. Inevitably the expert will be challenged with opposing views in deposition and under vigorous cross examination. The better she can demonstrate to the audience an appreciation and understanding of those views the better she can deliver a convincing message as to why her opinion is sound and fits the data and facts.
- Consistency: Consistency is a critical factor that is sometimes overlooked. This consistency must be embedded in their opinions as stated in their publications, previous testimony and even in views conveyed during the initial interviews and meetings. It is OK, and sometimes even desirable, that the expert’s opinions evolve over time as long as they are consistent in the process and logic they apply to analyzing key questions.
- Charisma: This is an extremely intangible quality, but it can make or break a good presentation to a judge or jury. Some relevant factors to assess are regional appeal, accent, body language, posture, and even personality quirks that can sometimes be endearing. Many times the important feature of charisma has to do with the teaching skills of the expert. Too often we see experts who come across as if they live in an ivory tower with first class pedigree but who can’t connect with a jury. A tendency toward subtle condescension during direct or cross (or exhibiting exasperation under tedious questioning) often detracts from the perception of an expert’s charisma.
- Connection: The expert must connect with the judge or jury, pure and simple. Without that connection, the testimony will fall flat and be ineffective. Techniques can be used to amplify that connection such as excellent demonstrative exhibits. Nevertheless, the ideal expert has an innate ability to connect with other human beings.
- Caring: The ideal expert has an ability to convey a level of concern for her field of research and compassion for the people involved, including the litigant, judge, jury or subjects of their research and treatment.) If the jury sees this compassion, it can be infectious and extremely persuasive.
- Character: Measures of character can be expressed in many ways, including a sense of honesty, hard work and commitment to the field of research, and a focus on community service. Experts are paid for their time to participate in a trial and can be the target of unfair accusations of bias based on compensation. These assertions can often be neutralized by conveying a narrative of hard work for little pay as a scientist, examples of community service or service to the professional community, volunteer work at University, or free medical treatment for under-privileged patients.
In our vast experience of identifying and recruiting experts for high stakes litigation, we carefully consider each of these characteristics when evaluating experts for specific cases. Unlike some of the generic expert witness clearinghouses, we work closely with counsel to understand the specific needs of the case, as well as to help vet the experts. The overall goal is to balance the qualities of each expert candidate to select the ideal testifier or team of experts that will complement each other to deliver a convincing message to judge and jury.
The vetting process can involve a diligent review of all expert’s publications and the volume of relevant information for the expert to perform at their best can daunting. We are often retained to ensure all experts and trial team are working with an organized and current universe of information.
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