The parts of the case having to do with expert witnesses in a personal injury case are often the most expensive, time-consuming, and complicated. Expert witnesses, as distinguished from fact witnesses, offer expert opinion testimony. Expert witnesses are permitted to offer their opinions in court based on their special education, training, certification, skills, or experience. Proposed expert opinions must be properly disclosed and any party opposing the opinions may challenge them. The judge acts as a gatekeeper for expert testimony. Before any challenged opinion is allowed it must pass muster with the judge.
Expert opinions, you are, by definition, outside the realm of common knowledge, and very likely to be beyond your own personal knowledge and expertise. In finding the right expert for your case, it is therefore often necessary to consult with a number of potential experts before you can find the expert you need on a given issue in the case.
WORKING BACKWARDS
In most cases you will have at least a good general idea of what your expert witness opinion disclosures should look like. But you cannot just disclose the expert opinions you would like to have to support your case — you have to go out and get those opinions. Before any expert witness opinions can be properly disclosed, they must be properly formed. Before any expert opinions can be properly formed, the appropriate information upon which the expert opinions will be based must be provided to the expert. And before that can happen, you need to figure out what kind of expert would be qualified to provide you with the type of opinion you are hoping to obtain and use.
WORKING FORWARDS
You don't know what you don't know. Therefore, when you are in unfamiliar territory, it is especially important to seek out advice from experts who know the territory. To illustrate this point, let's consider the challenges a plaintiff's lawyer is likely to face in a case where his or her client, the plaintiff, is suing a defendant doctor for medical malpractice.
In a medical malpractice case, the plaintiff's lawyer must find an expert (i.e., another doctor) who will testify that the defendant doctor breached the standard of care — this is an essential element of the claim. Without a doctor to testify as an expert witness that the defendant doctor breached the standard of care, the plaintiff's case would be dead on arrival. But neither the plaintiff nor the plaintiff's lawyer are likely to even know what the standard of care is for the particular medical procedure in question — much less whether the defendant doctor breached that standard. For this reason, plaintiff's attorneys often consult with various doctors in various medical specialties in a fairly unstructured manner. The lawyer and the doctors don't know exactly what they are looking for, but they hope to recognize it once they see it. In medical malpractice cases, this process often involves poring over volumes of medical records.
EXPERT WITNESS DISCLOSURE ELEMENTS
Expert witness disclosures should generally contain the following elements:
- Identity of the Expert
- Qualifications of the Expert
- Information Relied upon by the Expert
- Assumptions Made by the Expert
- Opinions of the Expert
In some cases, the parties are also required to disclose information pertaining to compensation of the expert, and prior expert testimony that the witness has offered.
The philosophies, strategies, and tactics I've outlined above are the principles that guide our actions at Cluff Injury Lawyers. I've outlined them pedagogically to help anyone who wants to better understand these principles or improve their skills in utilizing them.
Author: Brigham Cluff