Expert Witnesses: The Good, The Bad and The Ugly
Your Expert: Preparing your case for trial.
Your job as an advocate is to make sure you timely vet and hire the best expert in his or her specific field. This means doing necessary research into each expert’s background, education and experience before you stroke a check. You must make sure the hired expert has the time needed to devote to the case at hand. Your expert must be accessible and qualified. You must also have the means to fund your case and that means being prepared to pay your expert big money.
Discovery strategy
– OJ
– RFA
– Key Discovery
– MSJ on Affirmative Defenses
– Hire experts before discovery commences
– Don’t assume treater will negate need for expert
– Know mechanism of injury before you file suit
– Which Witness is best to get information from?
– Both in terms of who the jury will believe more and who will it be easier to illicit the info from.
Use of Themes
• Complicated facts are brought out through trial
• Jurors forget details but retain impressions
• Themes help trigger favorable emotional responses
• Connects facts to a moral narrative
• Makes your case relatable
– Use chronologies, timelines, and topic outlines
– Substantive: List the legal elements for the claims and defenses
• Take a look at jury instructions and make sure you understand
– Separate facts into the good, the bad, and the downright ugly
– Identify those facts that are crucial to the case
Know your case- that is your job.
• Parties
• OOP
• Discovery
• Exhibits
• Judge’s likes and dislikes
• SOL
• FACTS (Plaintiff called wrong name, route on HW was wrong, opening, list of witnesses not called)
Meet with your Experts In Person.
• Take advantage of their expertise
• They are a great resource
• Make sure they have ALL of the depositions and pertinent exhibits
• Have your experts review and approve demonstrative aids
Don’t Roll Over on Discovery
• Passivity is BAD
• Use of MTC
• Use of Sanctions
• Privilege Logs and in camera review
• Review the ROG answers- use them at trial
Date hired & Expert Rog Answers
The Good:
You have the power and ability to make your case compelling and believable by use of your expert(s). It is your job to prepare them for deposition and trial. If they are ill prepared you will lose your case. You will have wasted your time and money and you will have a very unhappy client to answer to.
You also have the power and ability to effectively eviscerate your opponent expert with exacting preparation. You will never out expert an expert- remember they are entrenched in their beliefs. That is how in most cases they make a living. You must cast doubt on their credibility and opinions and minimize their relevance. When at trial think quick jabs to the throat and one last punch for the knock out. Save the knock out for trial. The set up is done at the deposition.
The Bad:
The Bad isn't so bad, it just means you have to work. You have to prepare and research. This is especially true when preparing to cross the defense expert witness. Research is key. It should be continuous all the way up to and including the trial. Many resources are available: Trial Smith, AAJ, TBTLA, List Serves, prior Orders limiting testimony, You Tube, Face Book, Twitter, etc. Call colleagues who have experience with defense experts and read all of their prior deposition and trial testimony you can get your hands on.
If your client has a CME, make sure an Order in in place before the exam and the exam itself is transcribed and video taped. The CME must not serve as a second deposition of your client. Often times a doctor will lie at trial about what took place at the CME. You cannot allow this to happen. CME reports can also be a gold mine – read it and compare it to other past CME reports from the expert.
Rely on sources: CDC, Mayo Clinic, NIH, etc. that few can argue against. Rely on the doctor’s own stats or his facilities stats if relevant. Often times the defense expert has written something in his or her field and they can be deadly when used at trial to contradict their own opinions.
Prepare a chronology of significant events, hot documents and a player’s list. This can be updated as needed and will assist you and your trial team and your experts at trial. It will also be used as a foundation of some of your demonstrative aids at trial.
Follow the money trail for defense experts. Be prepared for the same by the defense.
Don't be so wedded to one theme or one direction. Cases are dynamic and you must be prepared to be fluid in your case preparation. If an expert you hired turns out not to be the right expert- don't try and rehabilitate them- cut them and hire the correct expert.
Set up conflicts with defense experts with treating doctors who are unbiased and have no hidden agenda.
Video tape the defense expert depo. Don't be a jerk. Be professional. Be persistent but not rude. Don’t stop until you get an answer. Doctor experts are often arrogant and snotty and when you play this video excerpt at trial the jury will get it. Impeach experts by using video clips. This takes work and time to prepare potential clips before trial. But the effort is well spent when the expert is confronted with a clip of himself or herself at trial.
Because you prepared your case well, you may impeach with medical literature and watch them squirm. This will help establish his or her defense bias.
Show the defense expert has not been provided with or bothered to review fact witness observations and or statements.
Don’t Take Anything For Granted.
– Your Own Expert Kills Your Causation Because they were ill prepared is your Failure to:
• Thoroughly prepare the expert
• Thoroughly know your own file
• Failure to anticipate causation defense
• Pay attention to the details
• Rely on paralegal to do your job
– If rely on autopsy for causation defense you better talk with the medical examiner at start of case
– If pre-existing condition is an issue make sure your experts have all medical records and know their opinion- could affect outcome of trial
Don’t Take A Case If You’re Not Willing To Go The Distance
• Complex cases require Experts.
• Experts cost Money.
• Never Assume Case Will Settle
• Make sure you have resources and infrastructure to handle case
• Co-counsel option
Chase Rabbit Holes.
• Never know what someone saw until you ask them
• Get 911 Tapes and Video Surveillance
• Never assume the police report is complete
If you’re not willing to spend the time investigating the case, then better have someone in your office that can
Know Your Medicine.
Can’t effectively cross a doctor unless you are well versed in the medicine, so take the time to learn the medicine. Your own expert can be invaluable here.
• Knock Out Fabre Defendant if possible and File MSJ : as a matter of law finding means no fabre and not on verdict form
The Ugly:
Simply put, if you do not prepare your expert for trial and if you fail to prepare for the cross at trial of the defense expert, you will likely lose your case. This can be avoided with preparation and hard work. That is the ugly truth which really is not so ugly since YOU are a warrior and YOU are prepared to roll up your sleeves and work hard for your client!
Remember Who You Work For.
• You answer to your client.
• Your priority is your client.
• Your duty is to your client.
• You are a counselor of the law.
• The need for realistic expectation discussion
• Your Allegiance is to the Client.
• Your Devotion is to the Client.
• If you do not like the potential client, do NOT take the case, no matter if it is a “good” case.
• If yellow flags become red flags after you take the case, then withdraw as counsel, formally, and return the file to the client, keep a copy for yourself, letter to the client needed, and referral if possible.
It is the Little Things.
• Available 24/7
• Remembers important dates
• Stays in Touch with case status
• Returns All Calls Timely
• Check in Calls
• Fosters On-going relationships
Trial
• Arrive early, everyday
• Establish rapport with Court
• Tell your client from parking lot to home they are on display- never know who is going to be on your jury
• Pre-mark exhibits- get agreement from defense
• Pre- Mark Demonstrative Aids if needed
• Have case law ready on known contentious issues (ie MIL)
• Trial Supplies
• Importance of Voir Dire Support
• Prepare, Prepare, Prepare.
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