The criteria used by attorneys to select expert witnesses may vary among disciplines, however there are basic criteria that can be used to get the best match and fulfill the client?s needs in Information Technology litigation.

From my perspective (that of an IT expert who is sometimes asked to serve as either a trial consultant or as a testifying expert), choosing an IT expert witness can be simplified by utilizing a set of selection criteria. There are certain qualifications, of course that you want the expert to have and these are essential in the selection process. There are also other criteria that can be used to evaluate the expert, speed the selection process and make your job, as an attorney, easier.

This article will examine the selection criteria that, in my experience and from my perspective, will assist the attorney in the selection process.

1. Time

2. Experience

3. Knowledge

4. Diligence

5. Integrity

6. Credibility

7. Preparation

1. Time is often the most difficult selection criteria. By time I mean allowing you, the attorney, lead time to find experts and to evaluate what they may bring to the case and time for the expert to properly prepare. Hasty decisions can often produce results that are incomplete and may damage your case. Time also gives the expert what he or she needs most in order to review, prepare and present his findings and opinions.

 2. Experience, obviously, is what the expert brings to the table and what is given the most attention. Experience needs to be examined from several angles:

This last criterion is often not considered but it is important in determining the depth of skills the expert has. Knowing the expert?s methodologies for investigation, research and examination will give you a better understanding of what you can expect from the expert and knowledge of the extent of his work on your case. It is essential that his methodologies be sound, exacting and through in a credible and defensible manner. This is especially important for the expert to withstand a challenge under Daubert v. Merrell Dow Pharmaceuticals.

3. Knowledge of the subject possessed by the expert is essential and credentials are important, but his knowledge of the support you need and the workings of the judicial processes are invaluable. The more the expert is knowledgeable the legal process, working with attorneys, report production and developing and expressing opinions, the easier your duties become and the more reliable your support becomes.

4. Diligence in reviewing the documentation of the case, depositions and industry practices is extremely important. This is the intense, detail work needed to review the contracts, plans, test results, status reports, executive supervision and the other documents produced from an IT project. This is where the answers to the questions of "What went wrong?" and "Who is responsible?" are found. These answers provide the basis for the expert?s report and foundation for his opinion. Anything less than diligent investigation will be exposed by the opposing counsel.

5. Integrity, for the expert, is as essential as knowledge and experience. The expert you engage should be looking for the truth based on the facts of the case. His examination of the case documents will provide the basis for his opinion, supported by specific reference to specific documents. The expert must be able to state that he had unrestricted access to all documents pertinent to the case (and not deemed privileged), performed the research, formed his own opinions, and written his own affidavits and reports. An expert of integrity will not allow himself to be given only the information and or documents the attorney wants him to have.

6. Credibility for the expert comes from a combination of his qualifications, knowledge, experience, and his ability to speak and educate others on the facts of and his opinions in the case. The expert must be open, honest and objective if he is to be credible. His role is to educate the court or jury and if he does not possess these skills, he cannot do that job.

7. Preparation of the report, for deposition or for trial is the key to being a good expert.

You, as an attorney, must understand how and to what extent the expert will prepare.

Here again time is a critical factor and must be given for the expert to properly prepare.

An experienced expert will be able to outline the preparation time required for all phases of the proceedings. He will also be able to tell you what he requires of your time in preparation for deposition or trial.

In selecting an expert, the criteria I have outlined can be a powerful tool to aid in expert witness selection. I have intentionally not mentioned costs although I know they are a factor. In my experience, cost should considered after the other criteria in this article have been satisfied.