When you file a lawsuit for a client who has suffered a broken leg, it makes intuitive sense to hire an orthopedist to give expert testimony in your case. Many cases are not that straightforward, however, and in these complex cases, presenting the right kind of expert testimony can make or break your case. In Episode 304 of Heels in the Court, trial attorneys Amy Gunn, Liz Lenivy, Mary Simon and Megan Crowe consider the choice of experts in complex injury cases. What kinds of expert witnesses do you need in these cases? What’s the best, most cost-efficient approach for bringing your expert up to speed on the facts of your case? Amy Gunn lists several basic approaches:
I’ve got a case that involves gastroenterology and whether a certain gastroenterology condition is related to some negligence that has occurred. Believe it or not, gastroenterology is not a subject area that I have a go-to expert on. So the question becomes “Where do I find an expert in that field?” We have a number of different resources for that. We have a company that we consult with from time to time for very specific experts. We have listservs that we are members of. You can ask your colleagues if there’s anyone they would recommend. We have databases that we search through. There are a lot of different ways to find an expert. The next question becomes, how do we contact this person and what records do we send?
The succinct answer is any approach that works, of course, and the decision always includes an element of cost-efficiency. Amy Gunn elaborates on this: “The analysis involves looking at the case to see if the case really warrants the specialized research that has to be done through various expert vendors, because they can be pretty costly.”
There are other variables at play, such as experience. Some highly qualified experts do not present well in court—they do not talk in ways that are easily understood by jurors or they get mushy when their well-considered opinions face stiff cross-examination. Here’s another challenge: repeatedly using the same expert on your cases comes with a cost, as Mary Simon explains:
[Every single time you use an expert], it’s kind of another tally against your doctor in their deposition. First question they’re going to be asked is as “Has the Simon Law Firm retained you before?” “Oh yes.” “How many times? Which lawyers? What cases? When were they?” It just opens up a big line of questioning. So in order to avoid that, I do the same thing that Liz does, which is I’ve done independent literature searches.
Here is another hurdle. Just because an expert is willing to testify doesn’t mean the court will allow that testimony. Liz Lenivy notes one way to lessen that risk:
One additional point on researching your expert is oftentimes in databases, whether it’s Westlaw or Lexus nexus, whatever you may use, you can actually look up expert sort of report generator. So it will show you how often do they testify. What other jurisdictions have they testified in? What’s the breakdown of testifying on behalf of plaintiffs versus defendants? Do you have someone who is a 100% plaintiff or a 100% defense person? Additionally, you can look up whether or not their testimony has ever been stricken by a court before.
Experts who testify only for plaintiffs or only for defendants are carrying baggage that attorneys will want to avoid, but it’s not determinative of credibility. Amy Gunn comments on this:
I love it when I ask an expert that question in a deposition and the answer is I’ve only ever testified in court or in deposition for defendants, but occasionally you have a compelling expert testify so well, and who is so likable, that you can get past it. It’s especially likely if the defendants also have an expert with an 85-100% testifying rate on behalf of defendants. It kind of becomes a wash, but it certainly is not my first choice. I need to have plenty of things in the pro column in order to get past that in the con column.
The specialties for expert witnesses are numerous, and they include more than opining on a particular medical issue. Sometimes, you’ll need a consulting expert, as Amy Gunn notes:
I don’t think it’s ever a bad idea to have an expert available, even in a nonmedical case or non-product liability case. Number one, for consulting, in case you need to learn more about the regulations and about the statutes that apply but also to have that person available.
If you provide your new expert with thousands of documents to review at a rate of $500/hour, having that expert might not be justified by the overall value of the case. How should the attorney proceed? Amy Gunn describes her approach:
The first one is to go ahead and cull those records to the relevant number and send those to the expert with an explanation that this is not the complete set, because you don’t want to look like you’re hiding things or purposefully not sending records to mold the opinion. So the letter or the correspondence should say, “I’m enclosing these records. Please know that there are an additional 15,000 pages of flow sheets, which I’m happy to provide to you if you believe that they will assist in your opinion.”
Mary Simon emphasized the need to think ahead to the expert’s deposition as a key moment for the expert:
[T]he biggest takeaway from this is to make sure your experts have everything they need to give their opinions. And make sure you’re not leaving anything out that would change their opinions or alter their opinions or that they would need to review to form additional opinions. The deposition, that’s the question. You’re thinking ahead to their deposition.
These are only some of the highlights from a much longer discussion. You are invited to listen to the entire discussion at Heels in the Court, Episode 304, “Onboarding Experts.”