Legal counsel face numerous decisions when determining whether or not to engage an expert witness and, beyond this, which expert witness to retain for an impending dispute. From experts with different qualifications, experiences, and educational backgrounds to experts of different genders and races, legal counsel face multiple options when selecting an expert witness. One key issue with which legal counsel often grapples is whether to use a seasoned, experienced expert witness or a first-time expert witness. First-time experts are generally active in, or retired from, a specific field and have never testified at trial before. Seasoned experts, on the other hand, may be professional witnesses who earn a significant proportion of their income from testifying. Unlike first-time expert witnesses, experienced experts often present themselves as experts available for hire for a trial and are registered with professional organisations from which experts are frequently sourced.
Set out below is a consideration of the advantages and disadvantages to utilising experienced and first-time expert witnesses.
Experienced expert witnesses – the advantages
The key advantage of a seasoned expert witness is the experience that they bring to both the court room and pre-trial process. Generally, experienced expert witnesses understand the type of documents and evidence required to form an opinion that will stand up to the rigours of the court room. They will be aware of the time pressures associated with a trial, and are generally more aware of the need to adapt to court deadlines than their first-time counterparts.
On top of this, such experts are aware of complex court room rules of procedure, the style of questioning to which they will be subjected, and the style of response they should provide (i.e. confident, assertive, and authoritative). Experienced experts may be less likely to be caught up in cross-examination techniques utilised by opposing counsel and resulting in damaging admissions, particularly when compared to first-time expert witnesses who have not previously been questioned in such a manner. Prior experience in presenting evidence in court may increase an expert’s credibility in the eyes of the jury, alongside the likelihood of their evidence being understood and accepted by the court.
Some areas of specialisation better lend themselves to the retention of an experienced expert when compared to first-time expert. Fields of study which are based on a fixed methodology which are less likely to result in conflicting evidence, given that the expert is simply applying the same method to different evidence. Consider, for example, an expert who specialises in calculating damages in litigation. Since the evidence provided by such an expert is based on a fixed methodology which remains constant regardless of the circumstances, it is less likely to give rise to issues of contradictory evidence that will be discussed below.
Experienced expert witness – the disadvantages
While an experienced expert witness presents many advantages for legal counsel, the track record of an experienced expert witness can also present challenges. It is important to consider whether the expert has any undisclosed conflicts or prior accusations of bias which may come to light during the trial and reduce the credibility of the expert.
Furthermore, legal counsel should consider the possibility of the expert witness contradicting a position they took in a previous case. This may provide ammunition for an opposing counsel to cast doubt on the reliability and credibility of the expert in question. In the US case of Collins v Wayne Corp.[1] (‘Collins’), for example, the court allowed an experienced expert to be cross-examined on contradictory statements he had made in a previous trial. This was not an unexpected approach, given that the same court in Reyes v Wyeth Laboratories[2] had already stated that:
“prior inconsistency is a particularly appropriate weapon for attacking expert testimony, since demonstration of the inconsistency is designed not to show that the expert has erred, but that he is capable of error”
The issue was worsened in Collins when counsel who called the expert witness failed to rehabilitate the issue through a line of questioning which delved into why his opinions did not correlate. Had counsel taken this path there is a chance that some of the conflicting evidence could have been explained away lessening the damage inflicted by the statements.
While this authority is not directly applicable in Australia, the case of Collins serves as an important lesson for legal counsel, highlighting the need to review an expert’s previous expert testimony. Prior testimony of a seasoned expert witness may contradict that given in the current trial, making it necessary to formulate arguments which distinguish past testimony from the current case.
Another issue to consider when engaging an experienced expert witness is the possibility of opposing counsel probing into the credibility and reliability of the expert. Opposing counsel may attempt to argue that since the expert is an experienced expert witness perhaps earning a considerable portion of their income by providing expert testimony, they have an interest in providing evidence which is beneficial for their client’s case.
Beyond this, the expert’s previous experiences in a particular court and with a particular judge is another factor to consider. It is unwise to choose an expert that has had unfavourable prior experiences with a particular judge in the past, as a subsequent encounter in the current case may reflect poorly on the impression given by the expert to the jury should the expert experience any hostility from the bench due to their previous encounters.
First-time expert witnesses – the advantages
It is important to note that first-time expert witnesses still receive a significant financial gain from the provision of their expert testimony. However, the credibility issues which arise when retaining a seasoned expert who relies primarily on expert testimony as their main source of income are significantly reduced. Rather, a jury may see a first-time witness as more credible due to their real-world experience and less frequent financial gain from testifying. Furthermore, if the witness remains active in their field rather than being a professional full time witness, the jury may place more weight on their testimony, on the basis that they would not risk the reputational damage that would ensue from expressing controversial ideas, the substance of which they were not convinced of.
Similarly, the issues in relation to the presentation of conflicting evidence and experiences with certain judges do not arise when a first time expert witness is utilised. The expert has a clean slate and will not be impacted by previous experiences in the court room.
First-time expert witnesses – the disadvantages
As would be expected, the first-time expert witness lacks the experience and knowledge of a seasoned expert witness. The first-time witness is unlikely to be familiar with what is expected in an expert report. As was discussed in our previous blog post “The Risk of Exclusion: Pitfalls of Irrelevant or Prejudicial Expert Evidence” (11 April 2016) the court, by virtue of s135 of the Evidence Act 1995 (Cth) has a general discretion to refuse to admit evidence (including expert reports) if the probative value of the evidence is substantially outweighed by the damage that the evidence might, among other things, be misleading or confusing. Cases such as Haissam Assatini v The Shell Company of Australia [2010] NSWSC 930[3] have shown that courts are willing to invoke this discretion to exclude export reports which lack rational processing and reasoning.
As a result, legal counsel must be aware that when utilising a first-time expert witness their level of involvement in coaching and advising the expert in preparation of their report will be significantly greater than when utilising a seasoned expert witness. First-time expert witnesses also lack the understanding of the procedural and evidentiary rules of litigation that a seasoned expert witness has, necessitating additional assistance and training.
The use of a first-time expert witness also carries uncertainties regarding how the expert will perform at trial. Counsel cannot be sure of how confidently the expert will present when outlining their evidence, nor how well the expert will endure the pressures of cross-examination. Both of these aspects of expert witness testimony are vital to ensuring the jury understands and accepts the expert’s testimony. Additional coaching before taking the stand will be required to ensure that the expert can respond confidently, articulately, and in a manner easily understood by lay jurors.
Conclusion
As can be seen from the above analysis, there are numerous factors both in favour of and against retaining first time and seasoned expert witnesses. Legal counsel should consider the context of their trial as well as the issues raised above before determining which route to take.
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[1] 621 F.2d 777, 785 (5th Cir. (Tex) 1980)
[2] 498 F. 2d 1264, 1283 (5th Cir. (Tex.) 1974)
[3] [2010] NSWSC 930