Preliminary Considerations to take into Account when Selecting an Automotive/Mechanical Engineer or Mechanic to Serve as an Expert Witness
Prior to identifying an expert, an attorney must understand that he or she must select an automotive/mechanical engineer or mechanic who not only possesses the credentials and experience that qualifies him or her as a reliable expert witness at trial, but who is also willing to handle the busy schedule that accompanies litigation. Therefore, such a mechanic must be willing to commit to the time necessary to review, inspect and analyze the evidence in a timely fashion, be readily accessible via phone, email or in person, and is able to supply the staff necessary to conduct any necessary testing, inspection, or backup work in a timely and sufficient manner.
Additionally, attorneys should consider selecting as an expert witness one who is sufficiently litigation-savvy. This is key, as an expert who is litigation-proficient can assist the attorney with identifying strengths and weaknesses in the case as well as the opposing party’s arguments and claims regarding the defectiveness of the truck’s equipment or of its maintenance.
Attorneys should also consider the mechanic’s personality and demeanor. What type of presence does the potential expert exude? How effective is the potential expert in relaying information? Will the potential expert’s testimony be perceived as boring or as charismatic, simple or too complex, credible or extremely confusing? Does the potential expert’s style command the jury’s attention in a positive manner?
When selecting an engineer or mechanic to serve as an expert witness in a truck accident case, attorneys should be mindful of the fact that the selection process is time-consuming, and therefore should avoid hiring his client’s shop mechanic, as the potential for conflict of interest as well as the perception of party bias will be difficult to overcome. Additionally, attorneys should avoid those experts who have merely proven that they possess only the minimal credentials to qualify as an expert in this type of specialized litigation. For instance, the attorney should avoid selecting an expert who is certified to repair tractor-trailers, but spends a majority of his career repairing passenger cars. Does the engineer command a sufficient expertise in the type of tractor or trailer that is at issue in the accident? Such credentials are vulnerable to motions in limine aimed at precluding the engineer or mechanic from testifying as an expert, or, in the event that he is permitted to testify, to aggressive cross-examination that may undermine the expert’s credibility and reliability.
The hiring attorney should avoid an expert who is willing to adopt as his opinion almost any theory that the hiring attorney suggests. Such a witness can be costly to the client not only during settlement negotiations, where an expert’s hastily adopted opinion may result in a higher settlement value (due to the court’s or opposing party’s disregard for the expert), but during trial when the expert is vulnerable to a hostile cross-examination that casts doubt on the expert’s understanding, credibility and reliability. Attorneys should also be cautious about hiring an expert who testifies often, or who testifies solely on behalf of defendants versus plaintiffs, or who has a high financial interest in continuing to be retained, or who possesses credentials that are actually not supportive of a high-level professional.
Given the nature and demands on engineers and mechanics, critical consideration of their flexibility to meet the attorney’s needs for the purpose of fully assessing the case is imperative. Highly specialized knowledge is required in order to understand all aspects that may impact or play a factor in determining a defective component. While consideration of these factors may limit the quantity of potential experts available to serve as a witness, thoughtful and thorough deliberation of these factors will prove to be worthwhile at trial. One must open a book to determine what is under the cover, and it is important to interact with the expert in order to allow the theory of the case to be supported by the expert’s testimony.
II. Identifying and Locating Qualified and Reliable Experts
Attorneys have a number of resources available to assist in locating reliable, credible and qualified experts. One of those resources is referrals. Attorneys or company representatives should seek referrals from other attorneys or companies whose in-house counsel may have utilized experts in comparable litigation. Attorneys may also consult their own clients, as the clients may have utilized certain experts in the past who could prove to be useful in the current litigation, particularly due to the existing relationship between the client and the expert. Additionally, lawyers should consider referrals from general practitioners who have experience with truck accident litigation and are familiar with automotive engineers and mechanics that specialize in performing repairs and maintenance on motor carriers, trucks or tractor-trailers. Other sources for referrals include trade associations, the opposing party’s competitors, the attorney’s client’s competitors (with the client’s permission) and organizations, such as IDEX Services, that specialize in providing experts. Identifying a reliable and qualified expert must be something that a seasoned litigator would have completed as a part of his or her quick response team, which is sitting in the bullpen ready for the call of duty.
Another source for consideration is consulting the authors of relevant leading texts and articles as well as professors or instructors at local or regional vocational schools, training facilities and large universities. These individuals, if unable or unwilling to serve as an expert, may be able to refer someone who would be interested.
Additional sources for referrals that may often be overlooked are professional organizations to which the attorney or client is a member. In Pennsylvania, the Pennsylvania Defense Institute (“PDI”) provides members with resources to not only locate experts, but to locate reports and articles published by these experts as well as transcripts of testimony provided by them at deposition and trial. Attorneys may also use their PDI membership to obtain feedback from other members regarding a particular expert’s performance and the other members’ experiences with an expert. Such resources can be very efficient and effective mechanisms for locating a quality expert that best suits the client’s needs and preferences.
Internet-based services and companies can also serve as a good resource for referrals. Attorneys should consider services such as LexisNexis’s Expert Witness Content or Westlaw’s Expert Investigation Reports to identify and research qualified experts. In addition, websites such as www.jurispro.com and www.nljexperts.com provide free services for identifying and locating experts throughout the country.
Finally, lawyers should consider consulting directories and guidebooks such as The Lawyers’ Desk Reference, the Martindale-Hubbell Directory of Experts and Legal Services, ALM Express directories, state motor truck associations and any resources of the relevant local and state bar associations. In Western Pennsylvania, such resources include the ALM Express: Mid-Atlantic Directory and The Pennsylvania Bar Association Lawyers Directory and Product Guide. Such directories and guidebooks contain contact information for experts in a variety of capacities regarding truck accident litigation.
Factors to Consider when Interviewing with Potential Experts
Interviewing an expert should include more than a mere examination of the expert’s credentials. During the interview process, the interviewing attorney should be attentive to a number of factors, including the ease of arranging the interview, the extent of pre-interview preparation undertaken by the expert and the quality of the attention the expert provides the interviewing attorney. Additionally, the interviewing attorney should consider whether the expert offers any insight or perception concerning the pending litigation as well as the quality of such insight or perception. The interviewing attorney should think about whether the expert has identified any issues, concerns or weaknesses within the interviewing attorney’s case as opposed to whether the expert considers the case to be without flaws, the extent of those flaws and the ability to overcome them prior to and during trial, and how those flaws and weaknesses impact the opposing party’s case. Such a qualitative assessment may be indicative as to whether the expert’s desire to earn a fee substantially outweighs the interviewing attorney’s interests and concerns for which the expert is being hired.
The interviewing process will be futile without any observation of the expert’s personality and characteristics that will indicate his ability to capture the interest of the jury and sway the jury favorably. The interviewing attorney should consider the expert’s speech and proficiency in effective communication versus any habits that will turn off the jury or cause jurors to tune him out. Critical attention should be given to the expert’s ability to break down technical terms and convey them in a manner that is effective and relatively simple to understand so that the jury is not struggling to keep up with the expert’s testimony and is ultimately lost.
The interviewing attorney should carefully observe the expert’s style and demeanor and consider the jurors’ potential perceptions of that style and demeanor. How does the expert dress? Does the expert appear arrogant as opposed to confident about his expertise? Does the expert appear nervous? Does the expert tend to fidget or avoid eye-to-eye contact? Is the expert firm in his opinion, using affirmative language over language of belief, e.g., “The driver lost control of the vehicle as a result of defective tires” versus “I believe that the tires may have caused the driver to lose control of the vehicle?” It is best to observe such communication-related behavior during the initial phases of the interview rather than at a later phase of the litigation where attorney and client resources are wasted or where it is too late to replace the expert with a more effective one.
The interviewing attorney should also consider the expert’s previous litigation experience. It is advantageous to know how often the expert has testified previously, an estimate of the expert’s costs and fee for testifying and providing reports, whether that expert has had any dealings with the opposing party or the opposing party’s counsel or firm, and whether the expert has a tendency to testify for defendants versus plaintiffs. Such information is highly relevant when determining the strength of the expert’s testimony, credibility and vulnerability during cross-examination at trial. Additionally, the interviewing attorney should obtain copies of transcripts of the expert’s previous trial testimony as well as any publications discussing the issue to be litigated.
The use of technology or visual aids is becoming increasingly important; therefore, the interviewing attorney should obtain presentations previously created by the expert and should inquire into the expert’s investigation, collection, preservation and use of evidence in creating and utilizing those presentations. Such presentations are critical, as they play an instrumental role in assisting the attorney and the expert in simplifying and explaining the client’s position during trial.
During the interview, the interviewing attorney will extensively discuss the expert’s credentials. Questions regarding those credentials should include a discussion as to which credentials the expert has that specifically supports the purpose of his testimony to be offered at trial and whether the expert’s interviews, investigations and techniques meet relevant industry standards. Such information will assist in any Frye or Daubert challenges to the admissibility of the expert’s opinion and testimony at trial.
Inquiry should also take place regarding whether the expert is likely to be retained by opposing counsel in the pending litigation, should the interviewing attorney opt not to retain him. This information is key, as it may be necessary to limit the extent that confidential and/or privileged information is conveyed during the interview.
After the Interview: Researching the Potential Expert
Following an interview and prior to selecting an expert, the interviewing attorney should research the expert’s previous articles and trial testimony. The attorney should obtain all publications and transcripts not previously given to him and examine the content of the publications along with the strength of prior trial testimony in similar litigation. Moreover, the interviewing attorney should contact at least three attorneys who have most recently utilized the expert during their trials and discuss the expert’s conduct and performance. This process will be simplified in the event an attorney or client referred the expert, as a number of these interviews may not be necessary if the referring attorney or client has a history of utilizing the expert’s services and that referring attorney or client has an established relationship with the interviewing attorney.
When discussing the expert’s performance, the interviewing attorney should inquire into the matters that were discussed or analyzed during the interviewing attorney’s interview with the expert, namely the expert’s accessibility, the expert’s interest in the case and any suggestions the expert provided in an effort to develop the case, whether the expert was impressive to the jury, whether there were any issues during the cross-examination and whether the expert’s costs and fees were reasonable. This process will provide guidance to the interviewing attorney in assessing whether the attorney and potential expert witness can engage in a productive relationship that will assist in a favorable outcome at trial.
As mentioned above, selecting an expert to testify at trial is a time-consuming affair; as such, it is a task that should not be undertaken lightly. Dedicating time to selecting the best quality expert must include some thought and analysis regarding the jury’s reaction to the expert. After all, the decisive factor in a favorable verdict may potentially hinge on the effectiveness of the expert’s trial testimony. Inquiring into that expert’s persuasiveness at the initial stages of the selection process can reduce the risk of selecting an expert who, ultimately, can cost an attorney his case.
For assistance with respect to this subject, contact Frank Botta at 412-394-2435 or Kristi Johnson at 412-394-2469.
This Thorp Reed & Armstrong, LLP Communiqué is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. We do not assume any responsibility to revise the Communiqué if there are subsequent changes in the law.
March 2008
