Having participated in thousands of expert witness candidate interviews, we at Cahn Litigation are amazed by how many talented trial attorneys miss key opportunities during the expert witness interview process.
The misplaced focus is typically on the case, from the attorney’s point of view, where the greater opportunity lies with the expert witness candidate.
The interview often centers on the facts of the case, the litigation strategies used to date, and the degree of difficulty in the expert candidate’s anticipated work product, including the scope of an expert report and expert witness testimony. Sometimes, focus is also placed on the unreasonableness of opposing counsel throughout the discovery process or the self-proclaimed brilliance of the interviewing attorney.
With the possible exception of how brilliant the attorney is, the rest of these topics certainly have their place on an interview call with an expert. They allow the expert witness candidate to have a better understanding of the environment in which they will be asked to help. But an attorney-centric discussion does little if anything to advance an interviewer’s understanding of the strengths and weaknesses of the expert candidate (and even the case).
Our experience shows that attorneys who take the time to plan their interview process are more likely to uncover an applicant’s true qualifications, leading counsel to the hiring of the right expert. To this end, we are offering the following best practices for how to interview expert witness candidates. Some of these practices may be self-evident but we hope others may lead attorneys to question their current approach and implement accordingly. We are confident that these constitute an interview process for success.
- Prepare a script of sorts, providing an introduction of the case at hand. It will ensure that you present only the background case information that’s needed and will keep you focused and brief.
- Our favorite expert witnesses have asked the attorney at the beginning of the interview call how they should respond to interview questions: Should they (a) treat the interview as they would expert testimony in court, strictly limiting their answers to the scope of each interview question or (b) expound upon everything related to their experience, so the interviewing attorney gets an idea of their subject mastery. If you like the sound of this, make it part of your interview. Tell the expert witness candidate at the outset of the call how you would like your interview questions addressed. Then, be sure to pay attention to how well the candidate follows your direction.
- For use after your introduction of the case, compose a series of interview questions that are carefully crafted to accomplish a particular purpose. As an interviewer, you need to discover (or uncover) different qualifications beyond the expert’s CV: (a) what is the expert witness’ stance on the important issues of the case, (b) how does the expert witness candidate handle both open-ended and closed-ended interview questions, and (c) can the expert witness candidate stick to the subject.
Some experts are well-qualified and well-credentialed but simply talk too much. At risk is disclosure of too much information or even inadvertent self-contradiction. To tease out this potential characteristic, don’t dominate the interview. Instead, take the time to write your questions in advance of your call, varying the interview question types to allow for maximum exposure.
- Purposely interrupt the expert candidate’s answers. Will he stay on point? Will he get rattled and lose his place? Opposing counsel will certainly be using this tactic during expert witness testimony. In the same vein, try to contradict or express doubt about the expert’s answers. See how he reacts and how he explains his expert opinion.
- Ask the candidate how she would explain a particular related concept to a layman. Then, listen critically to the answer. If the answer is too complicated, the jury and judge will have a difficult time relating to the expert witness and understanding your case. If you otherwise like the candidate you can work on this during witness prep, but you’ll have a good indication of how this expert will perform on the stand.
- Take notes on verbal ticks, accents, mispronunciations, grammar and syntax. A PhD in Neuroscience providing expert testimony will lose credibility with judge and jury as soon as he uses an inappropriate colloquial expression. This doesn’t mean that every technical expert witness also has to be perfectly eloquent. But you can discuss these minor flaws with your litigation team. More than one may be way too many.
- Ask about disqualifications. Ask about stricken or disallowed expert testimony. Ask about Daubert and Frye challenges. Get the details, and ask for the candidate’s explanations. Ask if the candidate has ever been in trouble with the law. Ask about hard conflicts, soft conflicts, and relevant acquaintances. Most importantly, ask if the expert candidate has ever taken a stance that could be construed as contradictory to your case. If so, where? Trial? Deposition? Publication? Book? Patent? It could take hours to flesh out a potential negative during the expert witness vetting process, which you can have answered and explained in an interview, in literally seconds.
- Talk specifically about the trial schedule and when you expect the expert witness candidate to be available. Professors have schedule issues around final exam time and at the beginning of the academic year. People commonly take vacations during the holiday season and late in the summer. It doesn’t matter how well-credentialed an expert witness candidate is, if he won’t be there when you need him.
- Discuss the possibility of travel relative to meetings, trial-prep sessions and the trial itself. Some expert witness candidates have bad backs, travel with oxygen tanks, or have travel requirements you and your client need to know about, such as requiring a First Class seat on all flights.
The takeaway is to remember that this is not soapbox for you, as an attorney interviewer. It’s a job interview for the candidate. Let your prospective expert witness do as much of the talking as possible. Stick to a script and deviate only when something really interesting comes up. Dig for the dirt to expose potential problems. This way, you will not only qualify the candidate’s credentials and relevant experience, you’ll know just who you’re getting as your expert witness.