Can I Get A Witness?

By Seth Cohen

What comes to mind when you hear the phrase “expert witness”? For some its Marisa Tomei’s character in the comedy My Cousin Vinny. Above the objection of the prosecutor, her character Mona Lisa Vito was accepted as an expert witness by the court, not because of any specialized training or certifications. Instead, it was because she worked alongside her father, brothers, uncles, and cousins as a mechanic, and gained firsthand experience and a seemingly encyclopedic knowledge of cars. With that expertise, her hapless fiancé Vinny was able to prove the innocence of his client and win the case based solely on her automotive knowledge. Tomei, it should be noted, won the Oscar for Best Supporting Actress.

While serving as an expert witness is no laughing matter and is a role to be taken seriously, the scene does illustrate several qualities one needs to possess to fulfill the obligation successfully. So, who qualifies and what does it take to be an expert witness?

THERE IS NO SUBSTITUTE FOR EXPERIENCE

Lawsuits cover just about every profession that you can think of, from finance and technology to manufacturing, aviation and everything in between. As a result, there is an endless need for professionals who possess deep experience within each of those industries to serve as expert witnesses. These professionals play a critical role in educating non-experts including judges, juries and legal teams on often complex and highly technical issues, and can be the pivotal voice that helps establish and ultimately decide a case.

However, there is more to being an expert than knowledge. It is imperative that one be able to communicate, often under pressure, in a simple, unbiased, and straightforward manner in both writing and when being questioned or cross-examined in a deposition or on the witness stand. Actively listening and clearly and concisely answering only the questions asked is critical. Long-winded answers do nothing but waste valuable time and cause attorneys to worry about controlling their experts on the stand. A congenial personality and relaxed and patient disposition go a long way in helping to win the trust of both the judge and jury.

Not all legal cases are played out in the courtroom. Many expert witnesses are asked to file reports in writing based on the review of case records, site visits, and other materials. Once again, the ability to communicate findings, no matter how complex or technical, in a clear, accessible way, is critically important.

WHO MAKES THE BEST EXPERT WITNESS?

Many professionals who are considering a second career or are retired, or semi-retired yet still keep their hand in the game, make perfect expert witnesses. These experts not only bring a career worth of experience with them, but they also have the time to dedicate to a case that may take months to decide.

There are, however, very personal considerations to be made before throwing your hat into the ring. For an expert, when choosing the cases to work on, it is essential to be very selective. Working for or against the ‘wrong’ party will have reputational implications, particularly for an expert who is semi-retired and may still want to pursue a full-time role within an industry. A vigorous vetting process and background check will take place to determine not only the credibility of a candidate but also whether or not the candidate has any conflicts of interest that would disqualify them from the case. Attorneys will also carefully review a candidate’s CV and qualifications to ensure that all of the information provided is accurate and up-to-date. In other words, one has to be willing to be entirely transparent, and able to guarantee that no skeletons will come jumping out of the closet at any time during the litigation process.

While there is little chance that you will take home an Oscar, being an expert witness can be a fascinating and rewarding experience that offers significant compensation and often leads to more opportunities to lend your expertise and experience to a case. Many professionals from Eleven Canterbury’s international network have found great satisfaction in serving as expert witnesses. If it is something that you would be interested in pursuing, we’d love to hear from you.

Seth Cohen is the Managing Partner of Eleven Canterbury. He was a member of the Group Managing Board and Head of Group Offshoring at UBS AG.