This article was authored by Ted Dunkelberger, who provides expertise in litigation strategy and expert recruitment at ISS. Ted has consulted with corporations and defense counsel on mass tort and complex litigation for over 26 years. Mr. Dunkelberger has worked with individual clients and industry groups on some of the country’s largest and most prominent toxic tort and product liability litigations.
Expert witnesses in legal cases have been called hired guns, junk scientists, and a variety of other derogatory terms. Lay skeptics contend that financial compensation compromises the expert’s objectivity. But the primary criticism, taken to the extreme, is that experts for each side offer complex and conflicting testimony impossible for average jurors to resolve, resulting in a “battle of the experts.” To many, this “battle” renders our legal system incapable of consistently producing a rational outcome based on sound science.

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:

1) Cast a Broad Net

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.

• Tap into your network. Gather referrals from attorneys within your firm, co-counsel and, if appropriate, attorneys outside of your legal team who have worked on similar cases.

• Draw on experience. Revisit your experience with experts in previous cases to clarify the characteristics and qualifications that align with your strategies.

• Obtain input from the client. Ask your client for the names of leading experts in the field or individuals with whom they have existing relationships.

• Review related literature and media reports. Peer-reviewed literature will provide names of researchers active in the field and insight into general trends in the subject area.  Also consider compiling a list of conference presenters, textbooks editors and chapter authors. It is equally important to examine a variety of other information sources, such as mainstream news media, trade publications, and blogs.  Experts quoted in these print and online information sources may be candidates or at least worthy of contacting to add to your network. Social media-based professional groups and technical discussion groups also represent sources for candidates.

• Expand your search. To identify experts who can effectively educate the decision-makers and convey a useful opinion it is essential to connect with individuals outside your network. An intermediary non-lawyer (expert search consultant) can often have a detached and objective discussion with experts in the field about “the experts in the field.” For example, by asking practitioners (who are not under consideration for any role in the case) for the names of thought leaders and subject matter experts they respect, you will gain knowledge that can be used in your search for the ideal expert and valuable information that will help you prepare the technical portions of your  case. Assistance from a third party can often help in providing a diverse selection of candidates to consider, with accompanying information about their strengths, weaknesses and opinions.

• Create a list of candidates. Based on your research, you are now ready to compile a robust and targeted list of candidates.

2) Conduct Thorough Interviews

• Review dossiers. Developing and processing detailed dossiers on top-level candidates prior to the initial interview can be extremely helpful.

• Conduct telephone interviews first. To improve efficiency and control costs, schedule initial interviews via telephone. In this scenario, it becomes even more important to be prepared to delve into the individual’s research interests, discuss trends in their area of expertise, and explore how they react to competing perspectives.

• Follow up with in-person meetings. Once you have generated impressions from a number of telephone interviews, you will be ready to meet the best of the candidates and assess their perceived strengths and weaknesses.

• Develop your short list. The information garnered in a well-conducted interview will form the basis of your short list of candidates and provide comfortable options to choose from as the case proceeds.

3) Select the Best Expert for Your Case

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:

• academic pedigree
• “scrappiness” on the witness stand
• intellectual prowess
• ability to stay on message
• knowledge of competing theories
• conviction of expert opinion
• regional appeal
• communication skills

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.