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Seven Keys To Retaining
The Best Expert Witness

By Charles C. Abut

AS MATRIMONIAL cases become increasingly complex, the need for expert testimony has correspondingly increased.  Today, it is routine for experts to provide testimony in such areas as the appraisal of real estate, business valuation, forensic accounting and taxation.  To ensure that the person you retain will be the best witness you can get for that purpose, begin with initial screening to establish preliminary criteria.  This will include determining the experience, credentials, demeanor and reputation of the proposed expert, as well as his or her fees.  Once these are out of the way, however, there are a number areas you should probe.  The following questions will help you retain the best possible expert witness and therefore elicit the most helpful expert testimony for your case:

(1) Based on the factual summary provided, what is your preliminary opinion?  Consider providing each proposed expert with a neutral (i.e., non-adversarial) and anonymous (i.e., with names deleted) factual background. Recognizing the lack of research and discovery, the expert should nevertheless be able to provide a tentative assessment.  Be wary of the expert who avoids any response, and instead replies by asking "What would you like my opinion to be?" or "How much can I charge?" or "Who is your client?"

(2) Are you or your firm currently party to any claim, in litigation or otherwise, in which professional responsibility, negligence, or ethical misconduct is in issue?  Have there been any prior instances?  You do not want to learn for the first time during a deposition (or worse, at trial) that your expert is being sued for dishonesty, or that he or she has a number of outstanding malpractice judgments. Get any skeletons out of the closet up-front.

(3) Would you and your firm agree not to consult with or be hired by the adverse party or adversary counsel on other matters, until my client's case is completed? Some forensic experts are so busy that they perform most of their work in testifying, rather than in their area of substantive expertise. flow will your client react upon learning that the expert you proposed is working on four other matters for your  adversary?

(4) Have you, or has your firm, ever been retained by, consulted with, or had any other social or professional relationship with the adverse party or adversary counsel? Learn about such relationships at the outset - not in mid-stream - and disclose them to the client.

(5) Will you disclose the extent to which any prior reports, articles, or testimony might provide fruitful grounds for impeaching you?   The expert's previous work product might contain a position in conflict with the opinions to be presented in your case.  Do your homework on these questions before retaining the expert.

(6) Will you disclose in advance all other material factors that might impact on your providing effective testimony?  If the proposed expert intends to move out of state, is suffering from a potentially disabling illness, intends to retire from the field, or there is some other significant development, this should not come as a surprise.

(7) Will you personally attend all necessary hearings, all settlement conferences, and provide all depositions and court testimony, with the understanding that other ministerial assignments may be delegated?  Your preliminary screening has led you to this expert, not to a partner or associate. If you hire this expert, make sure that the important appearances will be attended by him or her.

Complete answers to these seven questions will provide helpful information, and go a long way toward avoiding having embarrassing or damaging questions arise during discovery or at trial.  In addition, if you encounter an expert unwilling to answer, you might consider the refusal a red flag, warranting further inquiry, or you might perhaps consider using a different expert.

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