Hiring An Expert

Is hiring an expert necessary in every case?

Many criminal cases do not call for hiring an expert. That being said, there is no hard and fast rule that certain types of cases will never require an expert.

Generally speaking, when the government’s case against your client involves an expert, you will want to retain your own expert. The defense expert should be directed to conduct their own assessment of the evidence, as well as review the quality of the work conducted by the government’s expert.

However, just because the government did not employ an expert, does not mean you do not need one! For example, in an assault case, the government may rely exclusively on eyewitness testimony. You, however, can retain the services of a bio-mechanics expert to look at all of the evidence to determine whether the assault happened as described by those witnesses.

You may also want to hire an expert for mitigation. For example, if your client suffered trauma or is a juvenile, adolescent, or emerging adult, you may want to hired a qualified forensic psychologist. The psychologist will review your client’s records, the discovery, and evaluate your client. Their report can be an important tool in negotiations and service as powerful evidence at sentencing.

How do I know if I need to hire an expert?

As I alluded to above, if the government’s case relies on an expert, you must hire your own independent expert. This is not just to counter the government’s case with an opposing view, but to educate and prepare you to confront the government’s evidence. In fact, over the last decade, I have found that experts have been invaluable in preparing me to depose and cross-examine the government’s experts.

As I also mentioned, even if the government did not employ the services of an expert to build their case against your client, you need to think about whether an expert could help your client’s cause.

Is there something that has yet to be explained, such as how an injury occurred, that an expert could shed some light on? Was there a problem with how they preserved the crime scene? Were there steps the government could have taken, which they did not, and can no longer do because the evidence is no longer available? The list goes on.

How do I choose which expert to hire?

Choosing a defense expert is a big deal. Assuming you can get the funds approved to hire an expert, its likely you will only get one shot at hiring someone. Turns out that the expert is not a good fit and they spent the money? Good luck explaining that to a judge who didn’t want to give you the funds to begin with!

Ask your colleagues for recommendations when hiring an expert.

Your colleagues are great sources of information when it comes to experts. Many will have recommendations for you based on prior personal experience. Other will be able to tell you who to steer clear of! While you will have to do your own research, starting with a trusted colleague is where I always start my search.

Google experts for videos of prior testimony.

Some of the best advice I ever received as a new lawyer was to Google experts (before hiring them!). Better yet, Google videos of your experts testifying or giving lectures/presentations.

You would be surprised (or maybe not) how many experts are on YouTube. Some have videos of them giving talks, which can be helpful to getting a sense of their charisma, intelligence, and ability to clearly discuss complex issues. However, many experts have videos of prior testimony. Here’s a great example from the Michael Haag testifying about Google Experts For News About Prior Cases (and other stuff . . .)

Your expert may not have prior testimony on YouTube, but they might have a news clip or news article written about their testimony. Or, they will be mentioned in a news article about a prior case. Sometimes its good press and sometimes its not. Either way, you need to do this. You can be sure the prosecution is! (And if it is not obvious, you need to be Googling the government’s experts too.).

Because we cannot spend our days and nights constantly Googling our expert, or anyone else for that matter, I suggest setting up a Google News Alert. It takes five seconds (so while you’re at it, set one up for your own name and any high profile client to stay updated on what potential jurors are reading).

What do I need to provide my expert with?

In short, everything (usually). For many case, you want to provide your defense expert with every piece of discovery. That means police reports, transcripts of audio interviews (though in some cases you want the expert to have the actual audio or video), etc.

Of course, for a lab expert, you may just need to provide them with anything related to the chain of custody and testing of the material in question. So how do you know?

First, your expert will usually give you a list of everything they need to review or do in order to complete their work in a credible and reliable manner. Second, you should look at what you have and simply ask yourself, “does it matter if they don’t review this?” Or, in other words, “is not reviewing the item a line of cross-examination for the prosecutor?”

I like to err on the side of caution and send more, rather than less. I also make sure to ask my expert for updated opinions after they review additional discovery. This can even be a simple email from the the expert. Something I can put in the file and, if I am calling the expert as a witness, provide to the prosecution pursuant reciprocal discovery obligations.

Hiring an expert does not mean you don’t need to become an “expert” yourself.

Hiring an expert is not a substitute for counsel. In order to effectively defend your client, you must have an understanding of each area of expertise present in your case.

Does this mean you literally have to become an expert? Of course not. But, you should be able to hold your own when discussing such matters.

Don’t forget, the expert testimony will become part of your case, or the prosecution’s case. You must understand that evidence to clearly and effectively communicate your position to the jury. If you don’t understand the area of expertise, how are you going to do that?

What’s more, how will you know when to object? How will you know when to pivot during your examination of the expert and thing go sideways? And how will you know how to look for holes in your own expert’s report and opinions?

It’s simple. If you don’t understand, have your expert educate you. After all, that’s a big part of what they are getting paid to do!

What to do when you receive your expert’s report.

Most experts I have worked with set up a time to speak on the phone to discuss their general findings before writing their report. Oftentimes the call goes something like this: “My findings are not helpful to your defense for the following reasons.” You say a polite “thank you,” write a memo to the file, and plan to use them for confronting the State’s experts.

Other times, your expert will have an opinion about the evidence or your client that is helpful and you get a report. This is a good day, but, it is not enough to just read the conclusion. It is also not enough to just read the report.

You must must be one-hundred percent sure that you understand the report. If you don’t, it’s time to call your expert. If you do, try to poke holes in it. Don’t just take the favorable opinion and run. Attack that report as if you were on the other side.

Why, you ask?

Finding the holes in your expert’s opinion and/or report, before deciding whether to utilize it and provide it to the prosecutor, is crucial. The worst thing that could happen is you turn the report over and then find holes in your expert’s favorable opinion. Actually, the worst thing is turning the report over and not realizing there are problems until the State begins their cross-examination of your expert.

Preparing your expert for hearings or trial.

Preparing your expert for hearings or trial can make or break your case. Regardless of how great their report is or how well you felt the government’s deposition went, you can never be too prepared!

Spend some time with your expert, (even if it is over Zoom). Get to know them and how they got to where they are. The best way to do this is to ask questions left unanswered by their resume. For example, what brought them into this work? Do they take cases from the government as well as the defense?

Walk your expert through the direct examination and then ask them if they feel you missed anything important. After your get their testimony on direct examination down, cross-examine them.

Even if your prosecutor is incompetent, cross your expert like you would cross the government’s expert. Identify any potential problems with the testimony and find ways to address those issues on direct or re-direct examination. (Also, see my comments above about watching videos of your expert testifying in other cases).

Worried about how to structure you examination? I found Professor Imwinkelreid’s “Evidentiary Foundations” very helpful as a young lawyer. It is expensive, but you can get it for a good price used on Amazon.

Experts and discovery.

As I have said before, you’ve got to know your rules. Make sure that you fully understand the expert disclosure rules. Whether they be statute or court rule, you want to make sure that you don’t lose the ability to call your expert at trial!

I hope this rundown is helpful. As I think of more tips, I will be sure to add them. If you have any ideas please include them below in the comments.