Retaining a Business Resumption Planning Expert Witness (Part 1 of 2)
Over the last several years, we've endeavored to find tips for the contingency planner that are just slightly off the beaten path. One of these topics is what to do if you're ever called to testify in a lawsuit as a contingency planning expert.
Considering the depressed state of the economy (which may serve to encourage such legal action) as well as the normal and ever-present prospect of "Rambo litigation," we believe that even lower-level contingency planners should have at least an idea of what could happen if their organization were sued. Moreover, contingency planners should be aware of how to find and retain a contingency planning expert witness if one is required in the event of a negligence suit against your organization.
Lawyers are important in any legal action, but expert witnesses also play a major role in the U.S. judicial system. Experts presented in the course of a legal proceeding can significantly enhance the prospects for plaintiffs (the people or organizations bringing a suit) or defendants (the people or organizations defending against a suit), and expert testimony often radically changes the course of a case. Both plaintiffs and defendants make use of expert witness testimony. Engaging the right expert is no small matter.
Most people think of retaining expert witnesses based on rather narrow criteria. The old adage about buying real estate says that the three most significant factors to consider are "location, location, and location." Such a narrow focus isn't appropriate when selecting, retaining, or acting as an expert witness. You can't automatically assume that the most important criteria are "knowledge, knowledge, and knowledge." Credentials are the first clue, but you need to consider much more when retaining an expert.
Factors in Selecting an Expert Witness
One of the foremost factors in choosing an expert witness is his or her ability to digest and assimilate complex technical facts, draw a conclusion, and present it in an understandable manner to non-technical people (that is, a judge and/or a jury). A number of criteria best describe the ideal candidate:
- Communications skills
- Humble and earnest demeanor
- General credibility
Valuable traits such as openness, honesty, and a genuine desire to help a jury or judge understand a case go a long way; these should never be overlooked or underestimated. With the exception of knowledge, which can be checked and verified easily, the other traits are much more nebulous and difficult to measure. Later in this series, we'll impart a few tips for judging those capabilities. For the moment, we'll begin with knowledge, which is the first and simplest skill set to assess when evaluating an expert witness, or when presenting yourself as one.