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Law 101: Legal Guide for the Forensic Expert

Expert's Background and Qualifications

Starting the assignment in an orderly and businesslike manner indicates competence and professionalism. Intake memos, directives and engagement letters reflect the expert's attention to duty. They also serve to eliminate possible misunderstandings about the assignment.

The expert's general and specific assignments are essential parts of the initial engagement. Certain permissible areas of inquiry and dialogue between the expert and the attorney are proper, as long as the expert maintains the right to reach an independent judgment and provide an opinion that is based on the evidence.

When engaging an expert, attorneys may often:  

  • Investigate the expert's credentials and inquire as to whether the expert's background contains any potentially damaging material (e.g., felony convictions, or prior contrary testimony or written materials).

  • Engage the expert sufficiently in advance of the court date so that witnesses are included when disclosing their identities to opposing parties and so that the expert's opinion can be elicited before deciding whether to call the expert as a witness.

  • Tell the expert that he or she will be engaged initially only as a consultant (in an attempt to preserve confidentiality).

  • Elicit candid opinions from the expert on the issues for which testimony might be sought, and confirm his or her willingness to testify to that effect, before certifying the expert as a witness.

  • Spell out the rules regarding discoverability of the expert's research findings and written communications if the expert is chosen to testify.

  • Inform the expert of all actual and potential opposing parties (e.g., cross-claims and third-party defendants) and whose names should be checked for possible conflicts of interest.

  • Provide sufficient material to enable the expert to form an opinion that is based on the evidence.

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