Expert witnesses are all around us, and we are usually unaware of this. An expert witness is not someone who has to be licensed as an expert, but is someone who with his or her background, training, education or experience is an expert in a specific field, such as advertising and promotional, economics and statistical analysis, and business organizations.
Local colleges and universities are filled with experts or apparent experts, as are corporations, large and small. A former small business person who lost his or her business in an industry by reason of price discrimination activities might be available as a witness. Some lawyers might say to avoid such witness because of this extra baggage, which could hurt the case, but supposing the expert's testimony is good and you can't find anyone else, and that the expert is willing to testify for little or no compensation. You have to look at each situation and decide each one on its own merits.
Often the plaintiff can supply an expert witness, usually the founder of the company. The extra baggage, of course, is the interest in the outcome of the lawsuit, but this is so anyway, when the person testified on behalf of his company as to non-expert matters (as a fact witness).
It is suggested that to save money and be able to maintain the suit, it is often necessary to use the plaintiff's main shareholder, and such person is often more knowledgeable than other experts about the relevant facts.
The various types of expert witnesses which may be needed in a typical RPA case are:
Just a note on using experts on a contingency. A Disciplinary Rule prohibits lawyers from retaining and using an expert witness on a contingent-fee basis, although there is some case law support in New York that the client can retain an expert to testify on a contingent-fee basis without violating such rule, as long as the attorney does not participate in the transaction.
You should look at related material in Lawmall which covers more fully the use of expert witnesses on a contingent fee basis. Of course, any contingency would have to be above board and disclosed. If a contingent fee is used, the expert witness should be able to truthfully testify that his amount is contingent in the sense that he has agreed to a reasonable fee payable to him upon application to the court after the trial is over, or something like that, which reduces dramatically the adverse impact of the contingency.
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