Avoiding “Hired Gun” Experts that Hurt Defense Credibility

In the realm of civil litigation, the credibility of expert witnesses can significantly impact the outcome of a case. Defense attorneys, in particular, must navigate the precarious balance between presenting expert testimony and maintaining credibility in the eyes of the court. A common pitfall is the reliance on “hired gun” experts, whose partiality can undermine a defense’s position. This article explores the implications of utilizing such experts and offers guidance on maintaining integrity in expert witness selection.

Understanding the “Hired Gun” Phenomenon

The term “hired gun” refers to expert witnesses perceived as biased due to their consistent work for one side of litigation, often tied to an excessive fee structure. Their testimony frequently aligns with the hiring party’s narrative, raising questions about impartiality. The Daubert standard, established in Daubert v. Merrell Dow Pharmaceuticals, Inc., serves as a gatekeeping function, assessing the admissibility of expert testimony based on relevance and reliability, along with considerations of the scientific method, peer review status, and potential error rate. Under this standard, the credibility of an expert witness can be critically examined, and the presence of a “hired gun” can lead to challenges that undermine the defense’s case.

Implications for Defense Credibility

The reliance on biased experts can have several adverse effects:

1. Admissibility Challenges: The scrutiny of expert testimony under Federal Rule of Evidence 702 has been a long-standing practice since the establishment of the Daubert standard. An expert perceived as a “hired gun” is more likely to face challenges, risking exclusion and weakening the defense.
2. Jury Perception: Jurors may view testimony from a “hired gun” as less credible, affecting their deliberations. This perception can tilt the balance unfavorably, even if the testimony is technically admissible.
3. Cross-Examination Vulnerability: Opposing counsel can exploit the expert’s perceived bias during cross-examination, diminishing the witness’s impact and casting doubt on the entire defense strategy.

Strategies for Selecting Credible Experts

To avoid the pitfalls associated with “hired gun” experts, defense attorneys should consider the following strategies:

• Thorough Vetting: Conduct detailed background checks on potential experts, examining their past testimonies and affiliations. This process ensures the expert’s history aligns with impartiality and expertise.
• Diverse Experience: Opt for experts with a balanced portfolio of cases across both defense and plaintiff sides. This diversity enhances their credibility and demonstrates impartiality.
• Transparent Fee Structures: Fee structures alone should not be used as the sole indicator of an expert’s credibility or potential bias; context and qualifications must also be considered. A reasonable and transparent fee structure helps maintain the integrity of the expert’s testimony.
• Peer Recognition: Select experts recognized by their peers for their contributions to their field. Peer recognition should be assessed through established credentials, publications, and contributions to reputable organizations, rather than a vague notion of “recognition.”

Best Practices for Expert Preparation

Once a credible expert has been selected, thorough preparation is crucial to ensure their testimony withstands scrutiny:

• Comprehensive Briefing: Provide the expert with all relevant case materials to develop a well-rounded and informed testimony. This preparation minimizes the risk of surprises during cross-examination.
• Mock Cross-Examinations: Conduct practice sessions to prepare the expert for potential challenges. Simulating a cross-examination helps the expert remain composed and articulate under pressure.
• Clear Communication: Encourage the expert to communicate their findings in a clear and concise manner, avoiding overly technical language that may confuse jurors.

The Role of Expert Witnesses in Shaping Litigation Outcomes

Expert witnesses play a pivotal role in the courtroom, providing specialized insights that can sway a case. However, the effectiveness of their testimony is contingent upon their perceived credibility. Defense attorneys must be vigilant in selecting experts who enhance, rather than detract from, their case. By eschewing “hired gun” experts and adhering to best practices in expert preparation, attorneys can bolster the integrity of their defense strategy and improve their chances of a favorable outcome.

In conclusion, while expert witnesses are invaluable assets in litigation, their credibility is paramount. By comprehensively vetting experts, ensuring impartiality, and preparing them thoroughly, defense attorneys can protect their case from the pitfalls of biased testimony. Defense attorneys should stay updated on specific legal precedents, changes in laws, and empirical studies related to expert testimony to effectively manage expert witnesses.