The Importance of Expert Witness Selection and Questions to Ask That Reveal Whether an Expert Can Perform

The difference between winning and losing a case depends largely on the strength of your expert witness. If you are the plaintiff in a lawsuit, you need to retain an expert who has the expertise, knowledge and experience to convince a jury that your arguments on liability and damages are well-founded and persuasive. Your expert must have knowledge of the facts, law, and industry custom and practice to prepare an expert report, withstand deposition and cross examination, and testify effectively at trial.

If, on the other hand, you are being sued and need to hire a defense expert witness, your expert should measure up favorably to the plaintiff’s expert in knowledge, education and experience and should be able to powerfully rebut the plaintiff’s expert opinion.

Whether you are retaining a plaintiff expert or a defense rebuttal expert, there are important questions you should ask before making your selection. Does the expert have relevant work experience with the issues being litigated? Have they been deposed extensively on the issues in dispute? Do they understand the applicable industry custom and practice? Have they given trial testimony? And can they provide you with proof of results?

There are many self-anointed experts, but you need to inquire as to whether they have experience testifying in front of a judge and jury and what the outcome of those cases was. Ask whether they have actually been certified and accepted as an expert by the courts in which they have testified. They should be able to provide proof that they were qualified as an expert on the record, including the specific areas of expertise for which they were accepted and the acknowledgment or agreement of opposing counsel. 

In August of 2024, I testified for two days in a three-week jury trial in San Francisco Superior Court involving a buyer side representation and warranty (“R&W”) policy. The buyer of a company brought a first party claim under the policy for the seller’s breach of financial reps and warranties, resulting in an understatement of liabilities, an overstatement of assets and income, and an overstatement of net operating income against which a substantial purchase price multiple was paid.

There was a substantial compensatory judgment based on the individual misstated financial reps and the overstated net operating income against which the purchase price multiple was paid. The compensatory award, including prejudgment interest, was $4.2 million.

There was also a substantial punitive damages award entered against the insurer for bad faith claim handling. The $15 million punitive damages award was returned following the strength of my expert witness testimony, plus two years of post-judgment interest at 10% per annum, in addition to legal fees in the millions. 

If you don't think the stakes are high and the pressure intense, tell that to the seasoned 40-year trial lawyer who collapsed in the middle of my cross examination and required medical assistance but, fortunately, was okay.

I was certified by the San Francisco trial court on the record as an expert in insurance regulatory and compliance, claims and underwriting, bad faith, R&W underwriting and claim handling, with acknowledgement and concurrence by the various opposing defense counsel in the case.

To give you a sense of what it is like to testify as an expert witness in a bet-your-company case, I will give you a behind the scenes view in a future post.