We all do it, in work, our personal lives, and beyond: fall into the same patterns with the same people. Sometimes that’s a good thing. It’s wonderful to know that you can always rely on a particular friend to be there in certain circumstances, or that when you have a question about your health, you can count on your doctor to pick up the phone.
Yet settling into a routine can backfire as well. If you work out with the same trainer for years, for example, or only go to one instructor’s yoga class, you’re likely missing out on a breadth of other fitness opportunities. Yes, it’s reliable. It’s comfortable. You know what you’re getting, and you like it – and there’s something to be said for that. But soon, your body gets to know your routine, and it stops working as hard. As a result, your results (ironically) become less reliable.
Expert witness selection works the same way.
Let’s face it: it can be tough to find great witnesses. The combination of expertise, confidence, personality, integrity, and dependability isn’t something you can just dial up and order. When we find these folks, we want to hang on to them, and because most of us specialize in a particular field of law, their expertise is often relevant to multiple cases. It’s not surprising, then, that 44% of attorneys have a pool of “go to” experts.
There are two serious drawbacks, however, to bringing the same witness to the stand for the majority of your cases:
- Bias. Courts are increasingly spotting trends amongst litigators and raising questions around bias. Do the facts of your case truly run parallel to previous cases that you’ve tried with the same expert, or is it an “easy out”?
- Opposition. If your opposing counsel has seen your expert before, they can potentially anticipate what your witness will say and prepare a rebuttal specifically for the expert’s repeated checklist of presented facts. Patterns emerge in expert witnesses’ testimony despite the dynamic of case specifics, and the recognition of those patterns can be deadly to your case.
This is not to say that you should never reuse a witness. The most important criteria in expert witness selection is the expert’s qualification to testify, regardless of his or her history in the courtroom. It is true, though, that access to a large pool of credible experts can mitigate or negate the challenges mentioned above. With more choices, and especially with the support of a team to help you navigate those choices, you will always find the best person for the job – not just rely on your default.