In today's blog post, I discuss why attorneys use expert witnesses,
what the legal standards are for using expert witnesses and if they really
are just hired guns.
Let's start out by explaining what an expert witness is for law suit.
Expert witnesses are people that testify in a case where they give an
opinion concerning issues in the case because they have specialized education,
training and experience that will permit them to be qualified as an expert
witness by the Court. Experts are used when a case involves a matter of
science or requires special knowledge or skill that is not ordinarily
possessed by the average person. Experts give opinions based on the observation
of certain facts which they normally testify about. The most routine use
of an expert witness witness is a medical doctor in a personal injury
case. Why you may ask ? A doctor is needed to testify in every personal
injury case to establish the injuries of the plaintiff and that the injuries
were caused by the incident complained about by the plaintiff. A plaintiff,
while the average person could say I broke my leg in a car accident, cannot
describe what the diagnosis was and if the injury is what caused by the
accident. A medical doctor must testify about these issues for a plaintiff
to establish two of the material elements of a negligence case. Material
elements are kind of like a check list for a complete legal theory and
in negligence cases they involve a duty, a breach of that duty, damages
and that the damages were caused by the defendant's breach of that duty.
In New York personal injury cases, the Court normally instructs a jury
that it may reject an expert's testimony if the jury finds the facts
upon which the expert based his or her opinion are different from what
the expert testified about. A jury may also reject an expert's opinion
if, after considering all of the evidence, it finds that the jury disagrees
with the expert's opinion. The expert's testimony and opinion
are only provided during the course of a trial to assist the jury or the
court in coming to a decision and expert testimony is entitled to the
same weight as any other evidence in a case.
So how do we use expert witnesses ? First, the admissibility of expert
testimony is an issue that is left to the sound discretion of the Court.
The guiding principle in determining whether the expert testimony is admissible
is whether the testimony would help to clarify an issue before the Court.
A trial Court has to determine when jurors are able to draw a conclusion
from evidence based on their day to day experience, their common observation
and their knowledge and when the jurors would benefit from the testimony
of an expert witness due to the expert's specialized knowledge. Conversely,
expert testimony is not required when the information is not beyond the
ordinary knowledge and experience of the jurors themselves.
Expert witnesses must be qualified as experts. So how is this done ? An
expert must possess sufficient skill, training, education, knowledge or
experience from which it may reasonably infer that the information the
expert imparts to the jury and any opinion that the expert provides is
reliable. Acquiring a degree in a particular field of having formal training
are not necessarily required for a person to be qualified as an expert
as a person's expertise may be shown by practical experience in the
field. So how do we as attorneys get a person qualified as an expert witness
? Normally, we ask the witness about their education, training and work
experience. I will usually walk a witness through their resume and then
ask that their resume be admitted into evidence and then ask the Court
to qualify the individual as an expert witness which permits the witness
to provide expert testimony. What is opinion testimony ? A doctor can
give an opinion that the car accident caused the plaintiff's broken
leg - the plaintiff would not be permitted to provide this opinion because
they do not have the necessary expertise to provide that opinion. A court
also has discretion to restrict the scope of a witness' qualification
as an expert. For example, an internist may be qualified as an expert
witness but may not have expertise in emergency room medicine.
So what does all of this mean to you as a possible client ? It means that
we have to talk about who is going to serve as an expert witness at the
time of trial. Normally, in a personal injury case, the expert witness
is going to be my client's treating orthopedist. Sometimes, orthopedists
don't like us attorneys so they quote us cost prohibitive fees or
simply refuse to testify so then we have to find another expert for our
clients. We also need expert witnesses for medical malpractice cases or
any other type of malpractice case. Product liability cases require us
to find an engineer to discuss the design or manufacturing defect of a product.
To complete the answers to my questions posed at the beginning of this
blog post, I need to answer whether experts are hired guns. Well, on this
issue I will say that I prefer to have treating physicians testify. I
don't like hired guns. Unfortunately, attorneys are people too and
occasionally they will try to find an expert that will say anything that
is consistent with their case and it really does not matter whether you
are a plaintiff or a defendant. Both sides do it. Hopefully, through cross-examination
and the good common sense of the public, jurors will be able to tell when
someone is a hired gun and when someone is a credible expert that provides
testimony that is helpful to the ultimate decision in the case.
In closing, I will say what I always say which is I sincerely hope that
our readers don't become a plaintiff. Unfortunately, I know there
will always be plaintiffs and so, if you are injured and you need assistance
with a case, please give us a call at 1.800.900.6204 for a free consultation.
The attorneys at Michael R. Varble & Associates have over 150 years
of combined experience to put to work for you and we will fight for you.