The first step in any expert retention process begins with the issue of conflicts. One of the few observations regarding juries that is shared by judges, consultants, and experienced litigators alike, is that juries tend to be heavily bias-averse. Thus, jurors tend to be highly suspicious of “expert advocates,” or experts who appear overly zealous in rendering their opinion, or who have known prior affiliations with the party for whom they render the opinion.
Assessing conflicts, therefore, cannot begin and end at an inquiry of the expert’s prior relationship with opposing parties. For a juror to sense that an expert is truly providing an objective and factual opinion, the expert should have no prior relationships with either the party(ies) to which he or she opposes, or the party(ies) by which he or she was retained.
Of course, like many steps in the process, avoiding conflicts can be more challenging under certain circumstances. If you are seeking an expert from within a fairly small industry, you may need to continually review the criteria by which you are excluding expert candidates. In smaller industries, the entire expert pool for a given technology is more likely to have worked or hoped to work for one of the parties.
Similarly, small industries can lead to genuine conflict concerns, as the experts in those fields are more likely to have actually worked for one or more parties to a litigation. Most importantly, potentially conflicting prior relationships are not necessarily in a form likely to appear on a CV (i.e. prior expert witness work for an adversary, presentations on technologies given at a party’s annual technology conference, etc.). If it appears that every candidate has performed at least some nominal service to one or more of the parties in a lawsuit, remember that the primary role of the expert is to provide an objective, unbiased opinion.