The basics: choosing and using an expert witness.

"There is nothing more horrible than the murder of a beautiful theory by a brutal gang of facts."

--Francois La Rochefoucauld 

Trial lawyers have many reasons to keep La Rochefoucauld's observation in mind when building a case. His words ring especially true when you need to choose an expert. What good is your or your expert's brilliant theory of the case if the facts don't support it?

Most practitioners would agree that thorough discovery and evaluation of the facts are essential to clinching a case before trial. Selecting the right expert will make both tasks easier.

Once you have identified a case issue that requires an expert, you must find a person who is technically competent, skilled in applying his or her knowledge to the law, and willing to work diligently on the case.

Digging and hard work are central to the search. Conventional wisdom has it that you should not pay for the learning curve of an expert who has never testified at trial. So most of us call up a colleague to get the name of an expert who has already addressed the issue, and we hire that person. Unfortunately, this practice can yield poor results.

Instead of blindly following a colleague's recommendation, approach the search as though there has never been a case like your client's. Review pertinent technical articles, and consider as potential experts the authors and other sources that are cited in the footnotes.

Seek former employees of the defendant who might be willing to testify as experts. Industry trade groups are also good sources to tap. Plaintiffs who have previously sued a defendant company may not be able to testify as experts at trial, but they can provide valuable factual information and lead you to good expert candidates.

Once you have identified an expert, take a close look at his or her curriculum vitae. As unbelievable as it may seem, some attorneys retain experts who do not have appropriate credentials or experience to testify about the case issues. For example, if a product was defectively designed, make sure that the expert has verifiable and applicable design experience or has taught design professionally for several years.

Do not, however, look only for academic credentials. A mechanic who knows how to take apart and put together a motorcycle can determine whether the throttle stuck or the brakes failed in a crash.

It usually pays to look for an expert who knows the issues, not one who knows of them. For example, if you need a toy safety expert, it is wiser to choose a person who participated in Consumer Product Safety Commission meetings for drafting toy safety guidelines rather than a CPSC staffer with nonrelated experience.

Investigate the expert

Once you find an appropriate expert, search his or her background for problems that could undermine your client's case. Here are a few examples--taken from cases I have handled--of what can happen:

* A mechanical engineering expert in all-terrain vehicle litigation said he had a doctorate. At trial, the defense proved in cross-examination that the expert's Ph.D. was a mail-order degree from a university he had never attended or even visited. Even though the expert was qualified to testify based on his bachelor's and master's degrees in engineering, his credibility was eroded by his puffery.

* An expert in aircraft fuel system crashworthiness who had bachelor's and master's degrees and extensive work experience in aerospace engineering was hired as a potential rebuttal witness. At deposition, he performed perfectly.

Afterward, it was learned he was working on a doctorate degree in sexology. The expert was a sexual swinger who was conducting research among female college students. Clearly, his background did nothing to facilitate pre-trial settlement. Rather, the defense was probably eager to get him on the stand, hoping to destroy his credibility by bringing to light his unusual research methods.

* A defense expert in an aircraft fuel system crashworthiness case misrepresented his academic background. He said he performed well at schools that he had flunked out of, took courses he had not taken, and wrote a book on fuel system design when he had not. Copies of the expert's educational transcripts proved to be his undoing with the jury.

Although these are flagrant examples, "expert baggage" is not uncommon and can hurt your client's case. Do not take an expert at face value. Dig deep into his or her background to ensure you have hired a well-respected professional, and talk with others in the industry to learn how the expert is perceived.

Credibility problems

Experts also pose credibility problems when they are not straightforward. For example, a defense expert was asked in deposition why he left college. He answered, "I left because Vietnam was going on. I was from a small town, and it was my time to serve my country."

He testified he had been doing well at college when he voluntarily withdrew. The expert had, in fact, served in the military, but his college transcripts showed he had flunked out of school. The truth destroyed his credibility. Everyone makes mistakes, but not everyone lies about them.

Get to know your prospective expert, and make sure the expert is one who acknowledges, rather than avoids, the truth.

Where possible, cultivate relationships with defense experts. In products liability cases, some defense experts will not testify for a plaintiff for fear of jeopardizing an ongoing relationship with defendant manufacturers. Nonetheless, you can pay them as consultants to provide the defense perspective. Also, find out from defense experts which plaintiff experts they respect.

Defense experts can help form your strategy. For example, if you are investigating a sudden acceleration case and opposing counsel maintains that your client stepped on the gas pedal instead of the brake, consider accepting the defense position and arguing that the physical layout of the controls made the crash inevitable.

In another example, a tire-failure case involved a previously punctured tire that had been repaired with a plug. Plaintiff experts generally testify that tires fail because of manufacturing defects, while defense experts generally point to improper repair.

After learning that our tire had been repaired in contravention of long-standing industry practices, I retained an expert typically hired by the defense and adopted the defense position: The tire was improperly repaired for a puncture at a manufacturer-certified service center.

When hiring any expert, make sure you get what you pay for. Many experts have companies that include friends and family members living off the expert's reputation and abilities. These people may summarize depositions, perform technical assignments, or assist in case prosecution. It is difficult for an expert to be conversant in the case facts by merely relying on a quick review of deposition summaries prepared by others. If you keep close tabs on your expert's bills, you will see who is doing the actual work.

By selecting the appropriate expert, you increase the probability of discovering favorable facts. Several years ago I prosecuted an obstetric malpractice action involving the use of a vacuum extractor on a full-term baby with a persisting brow presentation. Four plaintiff attorneys who reviewed the case before me sought unsuccessfully to establish that the fetal heart tracings demonstrated fetal distress, which should have led the delivering physician to perform a cesarean section.

I hired an obstetrician with a great deal of vacuum extractor experience who had testified a number of times for the defense in medical malpractice actions. This expert determined that the baby's cerebral palsy and mental retardation was the result of intracranial bleeding caused by improper use of the equipment. To address causation I also hired a pediatric neurologist from a renowned hospital who had never testified as a plaintiff expert in a medical malpractice action.

The claim settled out of court, primarily as a result of my retaining qualified experts who looked at the case without preconceived notions. In depositions, the experts presented powerful facts in a persuasive manner: Using a vacuum extractor on a persisting brow presentation with a full-term baby is contraindicated. The misuse of the vacuum extractor in contravention of both standard practice and the manufacturer's written directions caused the baby's intracranial bleeding.

Effective exhibits

Once you are confident about your expert's background and have discovered all pertinent facts about the case, create exhibits. Make sure your expert is conversant with the facts and then have him or her review the exhibits to ensure they are effective teaching aids that will communicate the facts persuasively.

Also be sure that at trial the expert will answer questions directly, concede obvious points, and teach jurors effectively using the exhibits. The importance of retaining a detail-oriented, articulate expert cannot be overstated.

When searching for the right expert, look back to the words of La Rochefoucauld. But if you can't remember his advice, then perhaps a modern-day inspirational motto for the task should be, "It's the facts, stupid."

John C. Cabaniss is a sole practitioner in Milwaukee, Wisconsin.