When I tell people what we do at ECS (especially non-legal people), the response is often, “Wow, I had no idea that so much went into the expert witness process!” Everyone who’s ever watched a TV procedural, from Law & Order to CSI, knows how important expert witnesses can be to a case. But the shows don’t typically go into what it takes to get that game-changing person on the stand.
We do know what it takes, because we live it every day. But we wanted to find out more about what lawyers are dealing with on the ground when it comes to selecting the best expert witness for their cases. To that end, last spring we surveyed 90 attorneys to gain insight into how they work with expert witnesses, processes for locating the best experts, and common challenges that they faced when working with experts in the past. Here’s what we found out.
- 86% of lawyers surveyed use experts for some or most of their cases. No surprise here: for almost all attorneys, experts can make or break a case. This high percentage highlights how ubiquitous the expert witness sourcing process is to practicing lawyers. We (almost) all need experts on a consistent basis. It makes sense that we need a more efficient way to vet and source them, too.
- More than 90% of respondents agree the lead attorney is responsible for locating the witness. This statistic surprised me, because we often hear anecdotally that witness selection falls down the chain to junior members of the team or paralegals. Perhaps we’re seeing a case of “do what I say, not what I do” here, but either way it’s critical to establish clear ownership of the expert witness process. I tend to side with the majority – experts are important enough that it usually makes sense for the lead attorney to be in charge – but even if you do delegate, know who owns the expert witness process, and arm them with the information they need to be successful.
- 78% report they have had difficulty locating the right witness for a case. Despite what the witness database services would have you believe, there is more to selecting a witness than plugging your requirements into a website. From super-specific expertise to a hard-to-find locale to finding someone who is willing, able, and available at the precise time that you need him or her, securing the right expert can be tough.
- 24% of respondents have had an expert witness misrepresent qualifications. Why would a purported “expert” misrepresent his or her abilities? Pick your poison: to get a consulting fee, to feel important, vanity… the list is endless. Almost a quarter of the lawyers we spoke to ran into this problem, but happily, it’s totally avoidable. Always check credentials, including a portfolio, references, our trusty friend Google, and a formal background check. Outsourcing this process makes it easier, but even if you’re doing it yourself, it’s worth every minute and every penny. You can’t afford the potential liability of an unqualified expert.
- 40% of lawyers have paid fees to an expert location service. My father calls it “the dumb tax”: when you end up paying for something that you really don’t need to pay for because you weren’t paying attention/didn’t do your research/pushed it off too late/etc. Paying fees to locate the right witness falls firmly in this category. While many expert witness location services charge fees to legal firms, equally reputably and qualified services (like ECS) are also available at no cost to attorneys.
Finding and securing the best expert witness for your case is never as easy as picking up the phone. As reported in our survey, it takes time, resources, and know-how to get the most qualified person on the stand. You can see all the results from our survey in our white paper, “Common Issues with Expert Location Processes and How to Optimize Case Value.” Until then, know that you’re not alone in navigating the complex waters of expert witnesses – and that we’re always here to help.