How to Find an Expert Witness for an Employment Case

TL;DR:

To find the right expert witness for an employment case, first identify the specific expertise needed, such as human resources practices, economic damages, or vocational rehabilitation. Use multiple sources for your search, including professional organizations like the Society for Human Resource Management (SHRM), specialized expert witness directories such as SEAK or TASA, and referrals from trusted legal colleagues. Once you have potential candidates, conduct a rigorous vetting process by reviewing their CV, analyzing past testimony for inconsistencies, and holding a detailed interview to assess their communication skills and objectivity.

Employment litigation often involves complex issues that fall outside the everyday experience of a judge or jury. According to the U.S. Equal Employment Opportunity Commission (EEOC), it received over 67,000 charges of workplace discrimination in a single recent year, many of which proceeded to litigation. In these disputes, success can depend on clarifying technical subjects like the standard of care for an HR investigation, the statistical likelihood of discriminatory hiring patterns, or the precise calculation of lost future earnings. This is where a qualified expert witness becomes an indispensable part of a legal strategy.

Under the Federal Rules of Evidence, specifically Rule 702, an expert is someone whose scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue. Their role is not to advocate but to educate and provide objective analysis. Choosing the wrong expert can damage credibility, while the right one can provide the authoritative foundation needed to support your arguments. The process of identifying, vetting, and preparing this crucial team member requires a methodical approach that begins long before a trial date is set.

Defining the Specific Expertise Your Case Requires

The term “employment expert” is far too broad to be useful. The first and most critical step is to analyze the specific claims and defenses in your case to pinpoint the exact type of specialized knowledge required. A wrongful termination claim based on a flawed internal investigation needs a different expert than a disability discrimination case centered on a failure to provide reasonable accommodation. Breaking down the case’s core issues allows you to target your search effectively and find a professional whose knowledge aligns perfectly with the facts at hand.

Human Resources and Corporate Practices Experts

In cases involving allegations of wrongful termination, retaliation, discrimination, or a hostile work environment, an HR expert is often essential. These professionals can testify about the accepted standards of practice for corporate policies and procedures. They evaluate whether a company’s actions aligned with its own internal guidelines and with general industry standards. For example, an HR expert can opine on the adequacy of an anti-harassment training program, the reasonableness of an internal investigation into a complaint, or the proper way to handle employee discipline and termination. Their testimony helps a jury understand what a reasonable employer should have done in a similar situation. Look for individuals with certifications like the Senior Professional in Human Resources (SPHR).

Economic and Damages Experts

When a plaintiff seeks financial compensation for lost wages, the calculation can become complicated. An economic expert, often a forensic accountant, is needed to accurately quantify these damages. They go beyond simple back pay calculations. These experts can project future lost earnings (front pay), calculate the value of lost benefits like health insurance and 401(k) contributions, and discount these future losses to their present-day value. Their analysis provides the court with a clear, data-driven assessment of the financial harm the plaintiff has suffered. This testimony is crucial for establishing a concrete monetary award rather than leaving it to jury speculation.

Vocational Rehabilitation and Employability Experts

In many employment cases, a defendant will argue that the plaintiff failed to mitigate their damages by not actively seeking comparable employment. A vocational expert can counter or support this claim. These specialists assess a plaintiff’s education, work history, skills, and the relevant job market to determine their earning capacity and employability after termination. They can provide an opinion on the types of jobs the plaintiff is qualified for, the availability of such jobs in their geographic area, and the expected time it would take to secure a new position. Their report can be a powerful tool in either demonstrating diligent mitigation efforts or showing that the plaintiff’s job search was inadequate.

Key Sources for Locating Potential Expert Witnesses

Once you have a clear picture of the expertise you need, the next phase is to build a list of qualified candidates. Relying on a single source can limit your options, so a multi-pronged approach is most effective. Combining professional networks, specialized directories, and academic resources will yield the highest quality pool of potential experts. Each source offers unique advantages, from peer-vetted recommendations to extensive, searchable databases.

Professional Associations and Organizations

Industry-specific organizations are excellent starting points because their members are often recognized leaders and practitioners in their fields. These associations maintain high standards for membership and often have directories or referral services.

• Society for Human Resource Management (SHRM): The leading organization for HR professionals, SHRM is a great resource for finding experts on workplace policies, investigations, and corporate compliance.
• National Association of Forensic Economics (NAFE): For cases requiring complex damages calculations, NAFE’s member directory lists economists who specialize in litigation support.
• American Rehabilitation Economics Association (AREA): This is a key resource for locating vocational experts who can testify on earning capacity and employability.

Contacting these groups or searching their public member lists can connect you with highly credible professionals who are active and respected in their industry.

Expert Witness Directories and Referral Services

Over the past few decades, a robust industry of expert witness services has developed. These companies maintain vast databases of pre-screened experts across hundreds of disciplines and can save attorneys a significant amount of time.

Service Type	Examples	How It Works
Database Directories	JurisPro, SEAK Directory	Attorneys can search a public database of expert profiles, CVs, and contact information. The attorney initiates contact directly.
Referral Services	TASA, The Expert Institute	Attorneys submit their case details, and the service conducts a custom search to find and propose suitable, pre-vetted candidates.

While referral services often charge a higher fee, they perform the initial screening for you, which can be a valuable time-saver. Database directories offer more control but require you to do the vetting work yourself.

Legal and Academic Networks

Sometimes the best expert is one who has been recommended by a trusted colleague. Reach out to other attorneys who practice in employment law and ask for recommendations. Bar association listservs and practice-specific sections are also valuable places to seek referrals. Additionally, do not overlook universities. Professors and researchers at business schools, economics departments, and industrial psychology programs can make outstanding experts. They possess deep subject knowledge, are skilled at explaining complex topics, and often carry an air of academic authority that juries find persuasive.

The Vetting Process: How to Scrutinize an Expert’s Credentials

Finding a list of potential experts is only the beginning. The most important work lies in the vetting process. A seemingly perfect expert on paper can become a liability if they have a history of questionable testimony, lack communication skills, or have been disqualified in a prior case. A thorough background check is not optional; it is a fundamental part of due diligence that protects your case and your client. This process involves a deep dive into their professional history, past legal work, and a direct assessment of their suitability.

Reviewing the Curriculum Vitae (CV)

The CV is the first document you will review, and it should be analyzed with a critical eye. Look beyond the list of degrees and publications.

• Relevant Experience: Does their work history directly relate to the issues in your case? An HR expert who spent 30 years in manufacturing may not be the best fit for a case involving a tech startup.
• Publications and Presentations: Have they written articles or spoken at conferences on the specific topic at hand? This demonstrates a deep and current engagement with the subject matter.
• Prior Testimony: The CV should list prior deposition and trial testimony. A long list indicates experience, but a list that is heavily skewed toward one side (plaintiff or defendant) could be a red flag for bias.
• Certifications: Ensure their professional certifications (e.g., SPHR, CPA) are current and from reputable organizations.

Analyzing Past Testimony and Reports

An expert’s history is an open book if you know where to look. It is crucial to find and review their previous work to check for consistency and credibility. Search legal research databases like Westlaw, LexisNexis, and the public PACER system for the expert’s name. You are looking for several key items:

• Prior Reports and Transcripts: Reading their past work shows you their analytical style, how they form their opinions, and how they hold up under cross-examination.
• Inconsistent Positions: The worst thing that can happen at trial is for opposing counsel to impeach your expert with a contradictory opinion they gave in a previous case.
• Daubert/Frye Challenges: Search for any instances where the expert’s testimony was challenged or excluded by a court. A successful challenge in the past is a major red flag that their methodology may be unreliable.

The Initial Interview: Key Questions to Ask

After reviewing their paper record, the final step is a direct interview. This is your chance to assess their communication skills, demeanor, and overall fit for your case.

Expert Tip: During the interview, ask the expert to explain a complex concept from their field as if they were speaking to a jury. Their ability to simplify technical information without being condescending is a critical skill. An expert who cannot teach is an expert who cannot persuade.

Key questions to include in your interview:

1. “Can you describe your process for analyzing a case like this?”
2. “What percentage of your work is for plaintiffs versus defendants?” (A balanced portfolio is often ideal).
3. “Have you ever been disqualified as an expert witness by a court? If so, please explain the circumstances.”
4. “What is your fee schedule, including your rates for review, report writing, deposition, and trial testimony?”
5. “Based on the limited information I’ve provided, what are your initial thoughts on the key issues from your perspective?”

Understanding the Expert’s Role Beyond the Courtroom

Many attorneys new to working with experts think their only job is to write a report and testify at trial. However, a great expert contributes to the case strategy from the moment they are retained. Leveraging their skills throughout the litigation process can provide a significant advantage, helping you build a stronger case, anticipate the opposition’s moves, and prepare for critical moments like depositions and settlement negotiations. Their value extends far beyond the witness stand.

The Consulting vs. Testifying Expert

It is important to understand the distinction between a consulting expert and a testifying expert. A testifying expert is one you intend to have provide evidence at trial. Their identity, report, and the basis for their opinions are discoverable by the opposing party under the Rules of Civil Procedure. A consulting expert, on the other hand, is retained to advise you and your legal team privately. Their work is generally protected from discovery by the attorney work-product doctrine. You can use a consulting expert to explore potential weaknesses in your own case, analyze the opposition’s theories, or decide if a testifying expert is even needed, all without having to disclose their findings.

Assisting with Discovery and Case Strategy

An expert can be a powerful asset during the discovery phase. They can help you formulate targeted interrogatories and requests for production of documents aimed at the other side. For example, a statistical expert can help you request the precise employment data needed to perform a disparate impact analysis. Furthermore, when you receive the opposing expert’s report, your expert can be instrumental in dissecting it. They can identify flawed methodologies, unsupported conclusions, and logical fallacies, providing you with the technical basis for a strong cross-examination or a motion to exclude their testimony.

Preparing a Persuasive and Defensible Report

The expert report is a critical document that lays out the expert’s opinions and the reasoning behind them. Under Federal Rule of Civil Procedure 26(a)(2)(B), this report must be comprehensive and include:

• A complete statement of all opinions the witness will express and the basis for them.
• The facts or data considered in forming them.
• Any exhibits that will be used to summarize or support them.
• The witness’s qualifications, including a list of all publications authored in the previous 10 years.
• A list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.
• A statement of the compensation to be paid for the study and testimony in the case.

A well-written report is clear, logical, and built on a solid, defensible methodology. Your expert should be able to withstand intense scrutiny of every claim made in their report.

Common Pitfalls to Avoid When Selecting an Employment Expert

The process of selecting an expert is filled with potential missteps that can weaken your case. Being aware of these common errors can help you make a more informed and strategic choice. A brilliant expert with a hidden flaw can become a liability, while a seemingly safe choice might lack the specific skills needed to be persuasive. Avoiding these pitfalls is just as important as following the positive steps in the selection process.

The “Hired Gun” Problem

One of the quickest ways to lose credibility with a jury is to present an expert who comes across as a “hired gun”, someone whose opinions seem to be for sale to the highest bidder. Juries are perceptive and can often spot an expert who lacks genuine conviction and objectivity. A major red flag is an expert who exclusively works for one side (e.g., 100% for plaintiffs or 100% for defendants). While some specialization is normal, a complete lack of balance can suggest bias. Look for an expert who can articulate their methodology clearly and whose conclusions are grounded in evidence, not just in supporting your case theory.

Failing to Check for Conflicts of Interest

A conflict of interest can be fatal to an expert’s credibility and may even lead to their disqualification. Before formally retaining an expert, you must conduct a thorough conflict check. The expert may have a prior or current relationship with the opposing party, their attorneys, or even a key fact witness in the case. For example, an HR expert may have previously consulted for the defendant company. It is essential to ask the expert to run a comprehensive conflict check within their own records and to disclose any potential issues, no matter how minor they may seem.

Overlooking Communication Skills

An expert can possess unparalleled academic credentials and technical knowledge, but if they cannot communicate their ideas clearly and concisely to a lay jury, their effectiveness is severely diminished. The courtroom is not a university lecture hall. The expert must be able to act as a teacher, breaking down complex subjects into understandable concepts. During the vetting interview, pay close attention to their communication style. Do they use excessive jargon? Are they able to use analogies and simple language to explain their points? An expert who is brilliant but arrogant or confusing will not connect with the jury.

Scenario Example: In a disability discrimination case, a plaintiff’s vocational expert testified about the plaintiff’s inability to find work after being terminated. On cross-examination, the defense attorney asked a series of highly technical questions about statistical labor market models. Instead of getting flustered, the expert paused, turned to the jury, and said, “Let me explain it this way. Imagine you’re looking for a very specific type of car, but there are only three of those cars for sale in the entire state. That’s the situation my client was in with her job search.” This simple analogy made her point more effectively than a technical explanation ever could.

Preparing Your Expert Witness for Deposition and Trial

Selecting the right expert is only half the battle. Once they are on board, you must prepare them thoroughly for deposition and trial testimony. Even the most seasoned expert needs to be integrated into the case strategy and prepped on the specific facts, legal arguments, and potential challenges they will face. This preparation ensures their testimony is delivered effectively, remains consistent with the overall case narrative, and can withstand aggressive cross-examination.

The Importance of Thorough Preparation

The attorney’s job is to fully brief the expert on the case. This goes beyond simply sending them a box of documents. You should have a meeting to walk them through the key facts, the legal theories of the case, and the specific role their testimony will play. Ensure the expert has reviewed all relevant materials, including the plaintiff’s deposition, key internal documents, and the opposing expert’s report. The expert should understand which facts are undisputed and which are contested. This comprehensive understanding allows them to tailor their testimony to the precise issues the jury will decide.

Mock Depositions and Cross-Examination

A deposition is often a dress rehearsal for trial. Opposing counsel will use the deposition to lock in your expert’s testimony, probe for weaknesses, and gather information for cross-examination at trial. Conducting a mock deposition or practice cross-examination session is an invaluable preparation tool. This allows you to test the expert’s opinions and see how they react under pressure. You can play the role of the opposing attorney, asking the tough questions you anticipate. This helps the expert refine their answers, learn to stay within the scope of their designated expertise, and practice remaining calm and professional when challenged.

Creating Clear and Effective Visual Aids

Jurors often remember what they see better than what they hear. Working with your expert to develop visual aids can make their testimony much more impactful and understandable. An economist can use a chart to show the trajectory of lost earnings over time. A statistical expert can use a graph to illustrate a pattern of discriminatory hiring. An HR expert might use a timeline to show the sequence of events in a flawed investigation. These visuals serve as anchors for the jury, simplifying complex information and making the expert’s conclusions more memorable and persuasive during deliberations.

Conclusion

Finding and preparing the right expert witness is a methodical process that can be a deciding factor in the outcome of an employment case. It begins with a precise definition of the required expertise, followed by a comprehensive search using professional organizations, specialized directories, and legal networks. The most critical phase is the rigorous vetting of candidates, where their credentials, past testimony, and communication skills are carefully scrutinized to avoid common pitfalls like bias or conflicts of interest. An expert’s role extends beyond the witness stand; they are a strategic partner who can assist with discovery, analyze opposing arguments, and help shape the overall case narrative.

Securing a qualified, credible, and persuasive expert witness provides the clarity and authority needed to explain complex issues to a judge or jury. This strategic investment can transform abstract legal arguments into a compelling, evidence-based story. If you are building an employment case, making the decision to engage the right expert early in the process is one of the most important steps you can take. For legal professionals seeking assistance in identifying or preparing an expert, consulting with a team experienced in high-stakes litigation can provide the support needed to strengthen your position. Contact us for free consultation today.