An expert's word can carry tremendous weight with a jury. Often times, you can hear a pin drop in a courtroom when an accident reconstruction expert describes the specific stages and causes of an accident, uncovering details that most of us wouldn't even consider at first glance. Having the right expert can also pressure the other side to settle. However, when an expert witness goes south on you, it could doom your client's case. Because so much hangs in the balance, it's important to take the right steps when it comes to choosing your expert witnesses.
This article covers the process for using expert witnesses in personal injury cases, specifically the steps you should take to choose, locate and vet your witness.
Using Expert Witnesses: Choose the Type of Expert You Need
There are two broad categories of experts. A consulting expert helps counsel understand technical issues in the case, while a testifying expert offers an opinion to the factfinder. This distinction is important because, for one thing, the opposing side will be entitled to depose a testifying expert as opposed to a consulting expert. Some experts will wear both hats.
Once you've determined whether you need a consulting or testifying expert, you then need to determine the subject matter that you need the expert for. Below are some of the more common types of subject matter expert witnesses for personal injury cases.
- Medical experts generally testify about the nature of the plaintiff's injuries and whether the defendant's conduct caused them. Medical experts often personally examine the injured party, but in some cases may merely review the medical file. In medical malpractice cases, medical experts offer opinions about the standard of care to which other healthcare providers should be held.
- Mental health experts perform a role similar to medical experts in cases where the injury is mental or emotional. They also may be used to support claims for pain and suffering, emotional distress, or other noneconomic damages.
- Accident reconstruction experts piece together the specific events that caused an accident. If the plaintiff was seriously injured in a multi-vehicle pileup, an accident reconstruction expert will recreate a version of what happened.
- Science and engineering experts address matters such as what caused a vehicle airbag to unexpectedly deploy or whether groundwater contamination caused the plaintiff's health problems.
- Vocational rehabilitation experts offer opinions about the future work prospects of an accident-disabled plaintiff, and other issues.
- Financial experts focus on matters concerning damages, such as the amount of the plaintiff's future lost wages and benefits and how to compute their present value.
Be sure to check for statutes and courts rules in your jurisdiction that impose specific expert witness requirements in particular types of cases. For instance, some states have adopted medical malpractice laws that restrict who can testify as an expert, based on recency of practice experience or other factors. Also, keep in mind Federal Rule of Evidence 702 and similar state rules, which govern the admissibility of expert witness testimony.
Locate an Expert Witness
The best approaches to find an expert witness include:
- Asking other personal injury attorneys;
- Using lawyer listservs or other interactive forums; and
- Searching personal injury case law using the keyword "expert" for mentions of particular expert witnesses.
A number of websites list available expert witnesses. Expert referral services can help too, though they are often expensive.
Vet Your Expert Witness
Once you've identified an individual to be your expert, it's crucial to perform due diligence. It will torpedo your case if the judge determines that your testifying expert has inflated credentials. You also wouldn't want to learn at trial that your expert took the diametrically opposite position in a published article, or would refuse to explain basic calculations supporting their analysis.
Follow the following prudent steps to best vet an expert witness:
- Check for conflicts of interest;
- Verify the expert's curriculum vitae;
- Search for court opinions mentioning the expert to see what the judge says about him or her;
- Review the expert's published books or articles;
- Skim the expert's social media comments (and so forth); and
- Contact other lawyers who have used the expert in the past.
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