This article was authored by Ted Dunkelberger, who provides expertise in litigation strategy and expert recruitment at ISS.
We disagree with this assessment. When selected and deployed properly, experts enable counsel to relate nuanced and multi-faceted information to the judge and jury, enhancing their understanding of key points.
It’s true that competing opinions are inherent to cases involving complex scientific issues, whether the case involves a product liability claim, consumer fraud allegations, an intellectual property dispute, or even forensic science in a criminal trial. As David Ropeik states in his book, How Risky Is It, Really?
“The assumption that there is a single truth to know that the scientific method can bring us — or a useful truth we will all ascribe to — overlooks large bodies of science that show that there is no such thing as a fact. We are subjective analyzers of data.”
As every good trial lawyer knows instinctively, recruiting the ideal expert is critical to building and presenting a solid case. Expert recruitment is an intricate process that entails identifying, interviewing and vetting candidates. But if executed properly, the process will yield an individual capable of establishing credibility with a judge and jury and effectively communicating technical concepts and opinions that support counsel’s central arguments.
As Ed Gehres, an experienced science counsel and litigation partner at Patton Boggs LLP, says,
“Identifying the appropriate expert for litigation is perhaps one of the most important strategic choices counsel has to make during the course of litigation. Expert identification and development must be done early in the litigation process, as it takes time to develop a long-term working relationship and to get the full benefit of the chosen expert’s technical expertise.”
A rigorous and comprehensive expert recruitment program will enable counsel to convey complex scientific information to a judge and jury. In a 2010 article, B.D. McAuliff and T.D. Duckworth explored whether jurors are capable of distinguishing between valid and questionable scientific research. Their research indicates that jurors have difficulty critically evaluating the reliability of key studies. Experts chosen through a comprehensive selection process allow counsel to overcome this challenge.
To retain the ideal expert, we recommend a three-part approach, which we follow at Innovative Science Solutions when recruiting experts for our clients:
The first step in getting to a well-qualified expert is to seek out and find a large number of candidates. During this first step, it is our view that you should not feel limited to only the best and the perfect. Rather, you should create a long list in order to cast a wide net. We provide some suggestions below to develop this initial list of candidates.
Based on our experience finding well-qualified experts for numerous clients over many years, we believe that if you have performed the prior steps comprehensively and diligently, making the appropriate selection will come naturally and easily. Some of the subjective qualities that you will undoubtedly weigh include the following:
At the end of the day, only experienced trial counsel well-versed in the nuances of the case will be capable of deciding what mix of these subjective qualities will make an expert the best choice. But following the steps outlined in this post will make the process more robust and increase your likelihood of finding the ideal expert for your case.
Our goal is help legal teams recruit the best possible experts. To do this, we scour high and low to find the ideal experts for any specific need. Give us a try! Start by getting in touch by completing the form below.
On Wednesday July 8, 2020, Dr. David Schwartz of Innovative Science Solutions presented at the IADC 2020 Virtual Annual Meeting on a panel titled The Use of Genetic Testing in the Courtroom. A complimentary copy of the panel presentation is now available for download. Read more
Dr. David Schwartz of Innovative Science Solutions will be presenting at the IADC 2020 Virtual Annual Meeting on a panel titled The Use of Genetic Testing in the Courtroom. Read more
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