A good expert witness is extremely valuable — they can help effectively present your story to the factfinder by providing an authoritative, professional opinion on the facts of your case. Selecting a good expert is half the battle. Still, no matter how smart they are, your expert witness needs your help to do their best work. This article outlines some practical advice for attorneys about selecting and working with testifying expert witnesses.

SELECTING YOUR EXPERT

You should think about whether to retain an expert witness very early on in your case. If the case involves technical subject matter and there is an important issue or substantial amount of money at stake, you should seriously consider retaining an expert. If you know you want expert testimony to support your case, it’s best to lock in your expert sooner rather than later to avoid a time crunch at the end of the discovery period.

So, where do you look for an expert witness? In addition to asking colleagues and friends, you may also want to run Westlaw or LexisNexis searches to identify experts who testified in cases with subject matter like yours. The attorneys who worked on these cases may be able to share valuable insight on the experts involved. Local bar associations or special-interest legal organizations may also be able to make recommendations. Finally, don’t underestimate a targeted Google search. With any luck, you will have at least a few names to choose from.

You’ll also want to consider what type of expert best fits your needs. There are several types of experts that tend to testify in litigation: professional experts (a.k.a. hired guns, many of whom work for expert consulting firms), practitioners in the relevant field, and academicians. All these experts can work well depending on the nature of your case and your budget. If you have the time, try to interview different types of experts to get a sense of their personality and how they might appear to your jury.

Do not assume the professional expert will necessarily be the best just because they do this for a living. No matter the credentials, your expert may risk putting off a jury if they are overly formal or wonkish. Likewise, don’t count out potential experts simply because they may not have litigation experience. The best expert I ever worked with was a laid-back practitioner who had never testified in a lawsuit before. He needed to be educated on the procedural quirks of litigation, but he understood the complex subject matter at issue better than anyone else and communicated it in a clear, folksy way that resonated with the court. Experts with less litigation experience also generally cost less to retain, and they may come with less baggage in the form of prior testimony your opposing counsel will want to unpack at deposition or trial. If you are looking for a technical or industry expert, you may also want to ask your client if they have worked with any retired executives or business consultants with a relevant knowledge base who might be willing to help.

That said, if you are seeking an expert in a large, complex case with a demanding client, a seasoned professional may be exactly what you need. These experts will likely be more expensive, but they will be comfortable with the practicalities of sitting for deposition so you won’t need to waste time educating them in that regard and can spend your time focusing on the key substantive issues involved in your case. If they have testified frequently, professional experts are also less likely to appear nervous and they will be able to draw on their experience when opposing counsel throws them curveballs.

Academic experts can be very impactful if they have developed a body of research in the specific subject matter at issue in your case. For example, if you have a case involving medical issues, consider whether it would be useful to retain a research physician with experience analyzing those issues across an extended patient population. That kind of testimony can be incredibly persuasive to a jury provided your academic expert is able to explain their research in a straightforward, accessible manner. One potential downside of retaining an academic expert — especially one who does not have much litigation experience — is that they may be used to working with more generous timelines in their own careers. You may need to factor in extra time to make sure they stick to a comparatively tight litigation deadline.

You may also have received unsolicited emails from companies offering to find you an expert that fits your case. Proceed with caution here. While these services may be helpful in difficult situations, they increase your costs and are no substitute for your own due diligence on a proposed expert.

Finally, before retaining any expert, determine whether the potential expert’s testimony has ever been disqualified or stricken in a court proceeding. Westlaw, LexisNexis, and Google searches may reveal that your proposed expert has previously been disqualified by a court or has taken a position that is harmful to your client’s position. If a court has previously disqualified your potential expert, think long and hard before retaining them. A previous disqualification can become a huge side issue; you probably do not want to waste valuable time on your case dealing with it.

When you decide to retain an expert, execute a retainer agreement clearly identifying their role in the case and your expectations about the scope of their work and their rates.

WORKING WITH YOUR EXPERT

Developing a good working rapport with your expert is key. The better understanding your expert has of the case and their role in it, the more valuable your expert will be both as a witness and a knowledgeable sounding board as you develop your litigation strategy. Building a solid foundation of trust and communication with your expert will also help them feel more comfortable speaking freely with you about any potential concerns they may have about your case. You will also want to get to know the expert’s team if there is one — in many instances, the expert’s associates may be more accessible than the expert, but are still highly knowledgeable because they are doing the bulk of the grunt work needed to get the testifying expert up to speed.

Make sure your expert understands the scope of the documents and information available and provide them with whatever documents and information they believe they need to be fully prepared to do their best work in your case. Also, do not be afraid to ask your expert what you perceive to be dumb questions. The entire reason you hire an expert is that they know far more than you do about the subject of their expertise. You should feel free to pummel the expert with dumb questions because they will turn out to be some of the same questions that a jury, judge, or opposing attorney will pose. And if the expert can’t answer your dumb questions clearly and respectfully, they are probably not going to be a very good testifying witness.

It’s crucial to make sure at the outset that your expert understands the nature and scope of the attorney-client and work-product privileges to ensure they are maintained. In Michigan, the attorney-client privilege generally extends to confidential communications between the attorney and an agent of the client or attorney, including an expert witness. Communications between an expert and an attorney are not privileged, however, to the extent they relate to compensation for the expert’s study or testimony; identify facts or data that the party’s attorney provided and the expert considered in forming the opinions to be expressed; or identify assumptions that the party’s attorney provided and the expert relied on in forming the opinions to be expressed.¹

Michigan Court Rules do not require testifying experts to serve expert reports per se, but many parties still opt to have their expert prepare a formal report and reports may be required by the scheduling order. If your expert is preparing a report, make sure they have an idea of the type of information you think needs to be included. You should also set hard deadlines for initial drafts of the report that fall well before the deadline for serving the final report. Both you and your expert will probably need more time than you think for this step, so make sure you have ample time to review and comment on drafts and for the expert to recirculate multiple rounds of revisions.

When preparing your expert to testify at deposition and trial, you should set aside time for multiple preparation sessions. Ideally, these sessions will be in person, but often that isn’t feasible with experts because they are located far away from where your case is pending. In these sessions, emphasize to your expert that they should always remain polite and professional regardless of opposing counsel’s antagonistic attitude or off-the-wall line of questioning. They should avoid jargon and speak clearly in terms a layperson can understand.

You should confirm during your preparation sessions that your expert knows their report inside and out and is thoroughly familiar with any reports submitted by opposing experts. You should also make sure your expert understands that the scope of their testimony is limited. If pressed by opposing counsel on an unrelated issue, your expert should not speculate on a topic that is outside that scope.