An expert witness must be credible, knowledgeable, impartial, and articulate. But like with most things in life, there is no clear-cut answer to the question of choosing between an experienced expert witness and a first timer. “It depends entirely on the case,” says Zachary D. Silbersher of Kroub, Silbersher & Kolmykov PLLC, a patent-litigation boutique firm in New York City that he co-founded. “There are pros and cons to each.”
Silbersher says most litigators turn to career expert witnesses first. “You want someone with the best credentials possible, like a professor emeritus with 30-plus years of experience,” he says. “That way, it is as hard as possible for the other side to impeach the pedigree of the witness.”
Plus, someone who has experience as an expert witness knows how to speak technically yet eloquently at a deposition and at trial, so that people on the jury can understand them. “You'll run across experts that are extremely knowledgeable in their fields, but they've got to be able to turn that technical knowledge into something a non-expert understands,” says Braden Perry, a former federal enforcement attorney based in Kansas City who also serves as an expert witness in regulatory and financial litigation matters. “That's the biggest thing—being able to provide opinion to lay people in extremely complex issues.”
Silbersher agrees. “Sometimes, intelligent people are not that good at communicating thoughts to a lay person,” he says. “It’s one thing to speak to your industry peers about technical things, but it’s quite another to make a jury understand. A career expert witness can excel at that.”
But using a polished witness who has worked hundreds of cases can also have its drawbacks. “Juries don’t like to hear that a person is an expert witness, so it can look bad if someone is too practiced,” Silbersher says. But the worst-case scenario is that the opposing counsel can use a witness’s past testimonies against them. “There’s a record of what they have said in other cases, so the worst thing you can do is put an expert on the stand who says that x equals y, but the opposing counsel can then say, ‘But you said x doesn’t equal y in another case.’”
That isn’t an issue with a first-time witness. Silbersher believes litigators are often timid about hiring new witnesses when they shouldn’t be. “I think there can be too much emphasis on 30 years of experience,” he says. “There are articulate, passionate younger people who are very sharp and not as easily tarnished from other cases.”
A newbie witness can also become a must when the case requires someone with a very specific knowledge base. “We were working on a case with a semiconductor, and we had a hard time finding someone to speak specifically about it,” he says. “We needed a post-doc or grad student who had been studying it. So, in that case, a first-time witness was preferable and inevitable.”
And while new experts typically require more prep time, Silbersher says some people “just get it.”
Matthew Hoffman, the managing partner of RoundTable Financial Group in New Canaan, Connecticut, is one of those people. The alternative assets expert was consulting with GLG on a project in 2012 when a case came up that required someone with his background. “GLG hired me and guided me into this,” he says. He’s been an expert witness on two cases each year since and is working on his 12th case now.
Being an expert witness fits perfectly with Hoffman’s personality. “I’m very factual and black-and-white,” he says. “I don’t give too many opinions, and I view things as right and wrong. If there are gray areas, I probably lean one way or the other.”
Hoffman is also an experienced public speaker and lecturer who likes a challenge and has specialized expertise. “If a case is generic, you can go to a general expert witness,” he says. “But I work in a specialized, nuanced area of alternative investments. My opinion most likely won’t be reused; nothing I’ve worked on has been similar to another case.”
In the end, the most important thing is choosing an expert witness you trust to put in the work and propel your case forward, whether they are experienced on the stand or not. “Everyone has their first time being an expert witness,” Perry points out. “Frankly, it’s a matter of making sure you’re comfortable with them.”
---------------------
Erin Quinn-Kong is the former editor-in-chief of Austin Monthly and was previously an editor at Allure and Us Weekly. She writes for GLG, the platform that connects professionals with insight, and has written for a number of publications, including The Alcade, OpenTable.com, and Women’s Day. When she's not telling other people's stories, you can find her exploring Austin, Texas, with her husband and two young children.
