In its simplest definition, an expert witness is anyone with knowledge in a field or discipline that goes beyond what is expected of a layman. But there’s little agreement among litigators on what makes a great expert witness. Ask a dozen lawyers and you’ll get a dozen different answers.
Some lawyers disdain academics, fearing an “ivory tower” effect that can render the witness unrelatable. Others prefer the professorial approach and strive to find a witness who can “teach” the finder of fact about a difficult subject.
Despite this difference of opinion, most litigators agree that the right expert is essential to winning complex litigation. In fact, experts have never been more important. As the number of complicated cases hitting the courts grows, litigators are increasingly relying on experts to bring clarity to intricate financial transactions or the ins and outs of a technology, for two examples.
If picking the wrong expert can lead to catastrophe, how does a litigator identify the must-have traits in an expert? A good place to start is with the Four Cs.
Clear Communication
An expert might be brilliant, with deep experience in their field, but that doesn’t mean much if they can’t communicate that expertise to the finder of fact. Deep insight into the inner workings of a subject doesn’t mean that one can explain it to the uninitiated.
This is especially true as specialties become more complex. The best experts can speak to (and be understood by) not only their industry peers but also someone who knows little or nothing about the subject matter.
How do you test for it? Set a limited time frame for the expert to explain the topic at hand, preferably about a subject unfamiliar to you and your team. Ask follow-up questions. Could the expert cogently explain a complex topic in a narrative format? Could they answer questions that clarified areas of opacity?
Coachability
When you’re seeking experts, you’re often looking for the smartest person in the room. Sometimes this comes with baggage. Experts are usually in positions of authority and used to dictating how they think things should be done.
Litigation, however, is collaborative. You need an expert who can be a member of a team, not its leader. An expert who sees themselves as the still point of the turning world quickly becomes an obstacle, or even worse, a liability.
What’s more, no matter how experienced an expert is, they’re still going to need feedback to understand how to come across most effectively and what preparation they should make. A good expert listens and incorporates constructive suggestions so that their testimony can have the most impact.
How do you test for it? Ask the expert to give you an example about a time when constructive feedback helped their job performance. Professionals who will perform well in a team setting should be able to articulate specific examples of feedback and how it has made them better.
Confidence
Sometimes an expert can have too much confidence. Sometimes they can have too little. Both can be problems. Litigation can be an adversarial process where another well-credentialed expert will challenge your expert’s points. A confident expert must roll with these punches and display mastery of their subject while believing in both themselves and their conclusions.
How do you test for it? Confidence is difficult to define. Identifying it recalls Supreme Court Justice Potter Stewart’s famous locution: You know it when you see it. That said, ask your expert for an anecdote from their professional experience where they had to overcome a difficult obstacle or situation. This can give a glimpse into the confidence level and resilience of an expert.
Candor
Candor is defined as “the quality of being open and honest in expression,” and it’s one of the most underrated character traits of an expert witness. A good expert tells you what they know and is a forceful advocate for a position. A great expert is clear on what they know but also can assess the relative merits of a position, opinion, or view in a fair and balanced manner.
How do you test for it? Ask your expert about a time that they had to deliver unfavorable results or a bad outcome in their career. How did they prepare for the conversation? What was the approach? How comfortable were they in providing candor and transparency to an audience that wanted different news?
Because their decision can often make or break a case, litigators must be careful when choosing an expert witness. The most important thing is identifying and selecting an expert that both you and your client trust to advocate for your position. These Four Cs should help you arrive at that conclusion more reliably.
About David Solomon
David Solomon is Global General Manager with GLG Law, a platform that connects lawyers with expert witnesses in complex fields. He was previously with Axiom Global and Bloomberg LLP.