It was once an open secret among lawyers that finding an expert to testify on your client’s behalf was one of the easiest aspects of litigating. Lawyers not in possession of private lists of experts easily located persons willing and able to sell their expertise in the back pages of the state bar journal, in advertisements in legal newspapers, and in direct mail appeals from companies whose business is selling expertise. One consequence was that the phrase “a battle of the experts” came about, and people began referring to both lawyers and experts as “hired guns.” Another consequence was a professional cynicism about the virtue (classical, not instrumental) of experts.

The principle reason lawyers find it is easy to hire an expert to render an opinion favoring the client’s position is that the Federal Rules of Evidence make it easy to qualify a witness as an expert. Federal Rule of Evidence 702 simply requires the witness to have “specialized knowledge” which will “assist” the trier of the fact. For lawyers, then, finding and qualifying an expert is not an onerous chore. Just as the American legal system allows almost anyone to sue for almost anything, it permits almost anyone claiming expertise to testify as an expert.