How to use an expert witness

How to use an expert witness

In many cases, the participation of a technical expert in a personal injury or property damage lawsuit can govern its success or failure. This article develops three basic principles to maximize effectiveness and minimize cost.

The primary task of a technical expert is to establish incident causation based the physical and life sciences. Working with attorneys, the expert must help establish responsibility for the incident and communicate effectively to arbitrators or jurors.

During this process, certain issues associated with the attorney/technical-expert relationship become extremely important. Based upon experience with thousands of cases over the past decades, we recommended three basic principles to optimize time and monetary investment in cases requiring scientific expertise:

Principle 1: Get the technical expert involved early.

Principle 2: Use him to help understand the essential scientific aspects of your case.

Principle 3: Maintain good and timely communications with your expert.

There are a number of good reasons for using an expert early in the case. For example, crucial physical evidence may be lost or modified if too much time elapses. Roadways change, buildings are remodeled, access privileges are lost, a defect, which caused an accident, may be corrected, vehicles involved in a collision may be repaired or disposed of, and so valuable evidence will disappear.

Simply sending a photographer or fact-gathering investigator to an accident scene may not be adequate, since he is not a scientist and may not know what physical evidence is important. In addition, an accident such as one involving an alleged slippery surface is not measurable from a photograph. Furthermore, witnesses often move and become difficult to locate, their memories of the event will fade, or they could be less inclined to cooperate when too long a period has elapsed.

Another reason for engaging the expert early is that he can help in formulation of a complaint, counterclaim, or response to interrogatories before you are firmly committed. Thus, preparation and timing can be important factors in developing your strongest scientific case.

As a non-scientist, it is not necessary for the attorney to understand all of the technical aspects of a case. However, his or her grasp of certain critical details is all-important. Critical parameters and their significance to a particular case must be understood when appropriate and the expert should carefully explain these to you. For example, the lawyer should understand concepts such as the “coefficient of friction” in a slip and fall case, or the human factors when considering the importance of consistency in stair dimensions as people develop a rhythm when descending a flight of stairs, or the significance of skid marks before and after vehicle-impact, or the depth and crush pattern of the vehicles involved. Sometimes the issue is simply inadequate warnings or instructions. Technology Associates has helped win numerous cases based on warning label analysis and is a leader in this area.

Were the warnings adequate or improper? Did they result in a person not knowing what to do in an emergency situation such as a cooking fire? Were fire-extinguisher systems available that went unutilized because people nearby did not know how to activate them? Experts at Technology Associates have been involved in various cases where devices such as pull-chains, which release fire-smothering chemicals, went unused because no one knew of their presence. Was someone injured by an elevator because the doors closed with too much force, or did not level properly, causing someone to trip upon entering the car? Was an important machine guard removed or deactivated by an operator? Was an accident caused by a design, manufacturing, maintenance, or training defect? Who was responsible for setting up a machine, including its safety guards, and educating its end-users: the machine’s manufacturer, or the employer whose workers used it? Were government or industry safety standards violated, and did this contribute to the accident?

Equally important, the lawyer must understand the downside of the case and the opposition’s technical claims, as well as its strengths. As the case develops, the lawyer will probably have to defend related attacks, and potential problem areas will influence negotiations along the way.

In general, the more technical the case, the more important it is to understand crucial details, since the lawyer may need to question (depose) the opposition’s experts and to simplify and explain this information to a typically non-technical jury. The scientific expert should be able to help explain related issues to you and assist in your understanding of the technical aspects of your case. Technology Associates is especially skilled at providing the necessary understanding to attorneys and insurance claims personnel.

Maintaining good communications with your technical expert involves understanding what he can do and plans to do for you. Discuss time schedules, fees, and the need of reporting to you. Keep him informed of developments in a timely manner so that he can react adequately and prepare for situations arising when new information becomes available. It may be that additional analyses or tests will be required to verify or refute discrepancies in new testimony or evidence.
There have been situations where crucial information was revealed to the expert by opposing counsel while his deposition was being taken. Such surprises tend to weaken an expert’s effectiveness. By the same token, new government studies may have surfaced or additional depositions been taken, and this new information could buttress your argument and be helpful to your expert.

Good communications will permit your expert to help you prepare the scientific aspects of your complaint or counterclaim, provide you with crucial technical questions to pose at the time of discovery and trial and help you prepare questions for opposing experts. Planning sessions with your expert will allow you to control the direction of your case and organize the expert’s information before trial to maximize its desired impact.

In conclusion, the scientific expert can be used most effectively if:

1: The attorney initiates the technical investigation as early as possible.

2: The attorney insists that scientific findings are transmitted to him in a comprehensible form that will strengthen the case.

3: Channels of communication are maintained so that relevance of new and additional information, which arises during the progress of the case, can be evaluated and placed in context.