Importance of Identifying and Hiring an Expert Witness Early

Expert witnesses are used in a wide range of litigation and their opinions are often viewed as critical—frequently they can make or break a case.   As a result, many trials and hearings have turned into a battle of the experts.
Administrative hearings for professional licensing or occupational licensing law is no different.  Evidence of their importance in licensing matters can be found through the actions of a common state licensing authority – the California Department of Consumer Affairs (“DCA”).  While researching content for this blog entry, yours truly identified six (6) web postings by the DCA seeking expert witnesses for the following boards:

Despite their importance, few licensees and attorneys that represent them take the appropriate action to identify, secure, and use an expert as early as possible in their professional license defense.  As a result, the expert is secured late and the licensee and attorney spend too much of their time getting the expert up-to-speed on their actual case, than using the expert to his/her fullest potential. Furthermore, so much focus is on getting the expert competent to testify that little to no time is spent on determining whether this is the right expert for this particular case or client or whether the projected testimony should be reinforced or split through the use of multiple experts.
Here is a list of some of the benefits of hiring your expert witness as early as possible:

    1. Evaluating claims and defenses. The expert can quickly examine all claims early on in the process to determine which is meritorious and worth pursuing (and investing energy and attorney time – and fees – into, and which is a fool’s errand. It may actually give your licensing defense counsel the confidence to file for a motion to dismiss or to drive counsel to the settlement negotiation table.
    2. Selecting theory of liability, or defense. The expert can help counsel form a theory of liability, or a defense, that will accord with the “rules” of the expert’s field of expertise as well as with the requisite legal elements.
    3. Educating the attorney. The expert can help counsel learn a difficult or obscure area of practice. The expert can supply documents and background information, and can carefully select books and articles to help the lawyer gain a working knowledge of the particular area in issue.
    4. Conveying information about other similar cases. The expert can advise counsel of other past or pending cases involving the same, or similar, issues that the expert knows about (or may even have worked on), and put counsel in touch with the lawyers and important witnesses from those cases.
    5. Suggesting other experts.The expert can suggest other experts who may be helpful to your attorney in the expert’s field or in other related areas of expertise.
    6. Identifying opposition experts. Even though the time for compulsory disclosure of expert witnesses may be far away, in narrow areas and small communities the expert frequently knows which of his or her “competition” regularly works for the licensing agency or board.
    7. Examining tangible evidence and physical locations. If relevant, the expert can go to the area where the case occurred, and can examine the real evidence connected with the case.
    8. Identifying potential defendants and cross-defendants. The expert can determine whether all potentially blameworthy defendants have been named.
    9. Preparing discovery requests and responses. The expert can assist in drafting request for discovery that will pinpoint areas of inquiry and help counsel determine what is relevant to the case from the expert’s field of specialty.  This may not be readily apparent to the attorney upon first draft of the discovery request.  Similarly, expert witnesses can review the agency’s or board’s discovery request to help your attorney discern why the agency or board wants particular items.
    10. Preparing witnesses. The expert can assist in preparing clients and other witnesses for deposition by predicting likely areas of inquiry and anticipating sensitive areas. For example, in a brake failure case, the expert can help counsel interview witnesses to identify problem areas concerning the characteristics of brake failure and the physical signs of a failure.

In addition to the above, identifying and obtaining an expert early is critical as it permits you to (1) test the capacity of the expert and (2) gets the expert invested into your matter.  By working closely with the expert, the attorney and client will learn the type of person and witness the expert will be.  How do they communicate?  Will they act confident?  How do they handle pressure or stress?
In addition, by hiring early, his or her continued involvement in your matter will lead them to subconsciously “invest” themselves into your matter.  Instead of retaining the “hired gun” mentality of many experts, this expert’s repeated exposure to you or your attorney will hopefully get them to care about you and the result of your licensing matter. This is exceptionally important, as it is the only means by which you can hold the expert accountable on the date of the hearing.