By Jennifer T. Karol
ER 702 allows an expert witness to testify in a case if he has specialized knowledge that will help the trier of fact to understand the evidence or determine a fact in issue. There are no special credentials required of an expert, but to provide testimony the expert must show sufficient expertise to be able to give a helpful and meaningful opinion. Many times an expert witness can be just what a lawyer needs to understand the nature of the issues involved in a particular matter and present a compelling case to the trier of fact.
Once a lawyer has determined that an expert witness can be useful to a case, often the big question becomes how to find and select the right expert. Experts can be anyone from industry experts to academics. Though credibility is important, appropriate experts may not necessarily come with laundry lists of degrees and honors. Often, practical experience and peer recognition can be just as important and beneficial to consider in selecting an expert witness.
The best starting point in finding an expert witness often is asking other lawyers. Not only will a lawyer save time and valuable resources in finding relevant experts much more quickly by consulting with colleagues first, but he also will have the benefit of hearing firsthand the experiences other attorneys have had with a particular expert. Obtaining an expert referral from another lawyer will also provide a direct and cost-effective line to procure specific information about a particular expert, including past deposition and trial testimony, copies of publications, and lists of presentations.
Sometimes a lawyer will have to go beyond the recommendations given by colleagues. In those circumstances, consider consulting with your client and determining who in your client's industry network might be a good fit. Sometimes the nature of the expertise sought will not be something your client is familiar with, but your client may have just the connection that will assist you in procuring an appropriate expert witness. An employee of a client, a client's client, or a professional a client has done business with or is familiar with can be a perfect choice.
Another good way to find an expert is through professional associations that experts are affiliated with. Just like the Washington State Bar Association, many professional associations have online search functions that allow results to be filtered by geographical, topical and other relevant factors. Websites for professional associations may have links to journal articles written by particular industry specialists or may have notices of conferences or seminars where such specialists have presented. Websites also may carry photographs or tidbits of personal information about a potential expert, which can aid in selecting an appropriate professional.
Universities and academic institutions often have practitioners with credentials, which can be valuable in locating and selecting an expert. Faculty lists are generally online and can be a good starting point to make contact with an industry expert who may be able to provide a wealth of knowledge about other potential experts in the industry.
Published cases also can be a good resource to target a potential expert. Many decisions will quote from or cite an expert's testimony, and may also provide insight into how the expert's testimony was received by the court or the trier of fact. Cases may also allude to credibility issues or assets that can be valuable in making an expert selection. Expert referral companies should also be considered in the search for an expert witness.
Of course, finding an expert is only half the battle. Once a lawyer has selected a potential expert, care must be taken to thoroughly investigate the candidate. Background investigations, reference checks, rate inquiry, and investigation into relevant industry experience are a must. It is also important to determine the role of the expert, how often the expert works as an expert, and what percentage of the expert's income is derived from expert witness work.
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