Why Attorneys Seek Out “Working” Experts Over Professional Witnesses
When we internally vet expert witnesses for attorneys, the first thing we do is examine their current CV to determine how active the expert is in their field. We have learned (pretty early on) that BigLaw and MidLaw prefer to work with “dirt-under-the-fingernails” practitioners over “professional experts”.
Interestingly, we’ve found that even the experts who are very active in their respective field, somehow find the time to work on multiple litigations every year. But is there a sweet-spot for the number of litigations for which an expert has been retained? The short answer is yes and no… or put another way: it depends.
It depends on the credentials the attorney is looking for. It depends on how complex the litigation is. It depends on the type of case: Intellectual Property cases call for different types of experts than a personal injury or product liability cases. It depends on how long ago the expert last worked in the field… did the expert leave his or her field 15 years ago to become a professional expert or did they leave their field 3 months ago to become a professional expert? As you can see, it depends greatly based on the case, the attorneys’ preferences, the length of time the expert was in the field etc.
Attorneys often refer to the choice between a practitioner and a professional expert as a choice between substance and polish. While a “professional expert” might be a more poised public speaker, the “dirt-under-the-fingernails” practitioner almost always wins in the eyes of a jury (and the law).
Juries sometimes view professional experts as a “bought” expert rather than authentic and relatable. Another consideration is the Risk Factor: Professional experts with extensive litigation experience risk having successful Daubert challenges against them and their testimony may be excluded (certainly not what the retaining attorney or law firm wants)! And lets talk about their knowledge base: Professional experts’ testimony may rely on historical or theoretical knowledge whereas an expert in the field can address current, practical and hands-on knowledge.
Here’s a more detailed break-down about how attorneys and juries view experts-in-the-field vs. professional experts:
1. The “Hired Gun” Stigma
Juries are naturally skeptical. When a witness’s entire income comes from testifying, opposing counsel will relentlessly paint them as a “hired gun”—someone who is paid to have an opinion rather than someone who has an opinion based on facts. A practitioner, however, has a “day job” that provides them with an inherent layer of objective credibility.
2. Up-to-the-Minute Relevancy
Fields like medicine, cybersecurity, and engineering move at lightning speed.
The Professional Expert: Might be relying on standards that were industry-best three years ago but are now obsolete.
The Practitioner: Is currently navigating the modern complexities, regulations, and “unwritten rules” of the field. They don’t just know the theory; they know how the theory is being applied this morning.
3. Cross-Examination Resilience
Professional experts often have a “paper trail” of previous depositions. If they’ve testified in 50 cases, an opposing attorney will find every tiny inconsistency in their past statements to impeach them. A practitioner usually has a cleaner record and can defend their position using real-world examples from their current projects, which is much harder to pick apart than abstract theory.
4. The “Common Sense” Factor
Attorneys love experts who can explain complex concepts using “shop talk” and real-world metaphors. A professional expert can sometimes sound like a textbook, whereas a practitioner sounds like a person who has actually solved the problem at hand. That authenticity resonates with jurors who are trying to make sense of a complicated case.
The Bottom Line: An attorney can teach a practitioner how to be a better witness, but they can’t teach a professional expert how to have 20 years of recent field experience.