Bringing the Power of an Expert to Your Case
Written by Susan Faunce
Working with experts is necessary in almost every tort case today. Whether you need a doctor to prove liability in a medical malpractice case or a life care planner to bolster your damage case, experts are critical to giving your client the best chance to succeed. However, working with experts can also be risky and expensive. Techniques for finding the most effective experts and for avoiding expert trouble are discussed below.
What do you want from the Expert?
The first step in finding the right expert is to imagine yourself at trial and ask what you really need and want from the expert. Does your liability case depend on establishing a specialized standard of care and defendant’s breach of that standard? Are you looking for someone to take your damage case from five figures to six or even seven figures? You must be clear about your needs and wants from the outset to select and prepare your expert.
Choosing the Expert
With the proliferation of experts advertising their availability as consultants, you must be careful to select someone who is capable of maximizing the value of your case. In other words, someone who is worth the money you are going to pay them. Before hiring an expert, you should conduct an independent investigation, starting with basic internet resources. The expert’s own website, Google, Google Scholar, and Facebook can provide valuable insight into the expert’s work and background.
LexisNexis’ Expert Research On Demand (formerly known as Idex), TrialSmith, and the American Association for Justice’s website, may, for a fee, provide expert reports, transcripts, licensing data, reports of disciplinary actions, and other prior testimony. These resources take you beyond the expert’s resume and can reveal how the expert allocates her time between litigation and other work.
Deposition transcripts may show how effectively an expert is able to communicate her opinions. The testimony of an expert can reveal her general demeanor through her interactions with opposing counsel. These are all factors which are crucial in determining how likeable an expert will be to a jury.
You should also run a Westlaw search on each potential expert, looking for Daubert challenges and other published orders which may affect the expert’s reliability, reputation, and credibility.
Finally, if it is possible to meet the expert in person before making the final decision to retain her, you should do so. There is nothing like a face to face meeting to help you decide if this is really the person you want on the witness stand when your client’s case hangs in the balance.
Challenge the Expert
Be sure to ask the tough questions of your potential expert. If you don’t ask these questions early on, the other side will surely ask them later. To challenge the expert’s credentials and preliminary opinions, you will need a good working knowledge of your subject matter. You may get this by reviewing journal articles, referring to authoritative treatises or texts, subscribing to online resources, or by talking to other prospective experts.
If the expert has previously testified on a wide range of topics, press her to find out how current she is on the issues in your case, and exactly what limits she imposes on her own expertise. You should explicitly ask: 1) whether she has ever been through a Daubert challenge; 2) whether her opinion has ever been excluded by any court; and 3) whether she has previously written about or testified to opinions which are not consistent with the opinions she may be asked to render in your case.
Finally, you have to ask the uncomfortable personal questions about whether an expert has ever been subject to criminal proceedings, a party to litigation, or fired from any position.
Knowing when to hire an expert and which expert to hire are important decisions in personal injury cases. Thinking about the difference between what you absolutely need from the expert and what you would like to have will help you find someone who is qualified, credible and truly beneficial to the case. Careful groundwork in choosing and preparing the expert will put you in a position to achieve the best result for your client.