Today, litigation is more complex than ever. An attorney is ethically bound to provide the best representation for the client. In order to do so, the attorney must use all the resources available, and an expert is certainly one of the most beneficial.
The web site www.Law-Dictionary.org defines an expert as follows: "From the Latin experti, which signifies, instructed by experience. Persons who are selected by the courts or the parties in a cause on account of their knowledge or skill, to examine, estimate and ascertain things, and make a report of their opinions."
The web site www.findlw.com defines an expert witness as: "A witness who by virtue of special knowledge, skill, training or experience is qualified to provide testimony to aid the fact finder in matters that exceed the common knowledge of ordinary people."
By the very definitions from these legal dictionaries, the expert is identified as potentially the most qualified witness for the legal team. These individuals are the best equipped to analyze the information obtained through discovery, determine how it applies to the specifics of the matter, help separate "fact from fiction," and provide sound, unbiased opinions as to the effect of the "facts" on specific issues at hand. Seemingly, the most important function of an expert witness is to assist the attorney in presenting often technical information to the judge and jury in a manner that is easy to comprehend.
Choosing an expert witness
It is clear that expert credentials are certainly important, including education, training, relevant subject matter experience in the discipline all must be considered. The most credible experts should still be active in their field since, if it is noted upon review of the witness' CV that they have been away from their trade or profession for an extended period of time, it may be perceived that they are not as familiar with ever changing procedures, industry standards, codes or products that may provide additional resources for their analysis.
The expert should be detail-oriented with good written and oral communication skills, possibly even sociable. The expert witness should not appear awkward to the judge or jury. Interviewing prospective experts is essential in this process. Be sure to ask about prior deposition and trial testimony experience. Do keep in mind that good experts don't just appear. So, if there is an opportunity to work with a particularly qualified individual who lacks deposition and/or trial experience, a "diamond in the rough" may have just been found.
Give expert witnesses the tools to do the job. Provide required information in a timely fashion, be available to answer questions and discuss progress on the assignment on an ongoing basis. There is nothing worse than finding out too late that an expert is on a different path than was anticipated. Remember, the expert's first duty is owed to the truth, followed by their integrity and ethics. Working within these guidelines allows for the best possible relationship.
Stowell, AIA, is an inspector with ROEL Consulting Services, and Hickey is director of marketing for ROEL Construction.