When a personal injury case goes to trial, selecting the right expert witnesses can be one of the most important decisions that your attorney makes. Expert witness testimony is a crucial part of litigation strategy that can mean the difference between a successful case and one that results in disappointment or dismissal. It is also central to the outcome, either swaying a jury to your side or turning them against you, with significant consequences for your ability to get reimbursed for medical expenses or lost wages.
Here are some important things to understand about expert witnesses and how they affect your case.
Why Do You Need An Expert Witness?
Personal injury law often relies on expert testimony to support the claims made in a case. Experts are able to provide the details and explain complexities in a way that makes sense to judge and jury.
Not every personal injury case requires an expert witness, but it’s almost impossible to present a thorough case without at least one expert, which includes a doctor that can testify to your diagnosis and prognosis.
In cases of product liability, medical malpractice, car accidents and construction accidents, experts play a major role in establishing cause and effect between the accident or incident and your subsequent injury.
They are especially useful in cases where the opposing party disputes the relationship between the accident and your injury. For example, if the defense claims that your back injury is a result of your love of basketball and not your car accident, an expert witness can reconstruct the accident and establish the relationship. Experts can also testify to the specific long term effects of your injury.
Expert testimony tends to be more reputable and carry more weight than the average person’s explanation, and helps make the facts of the case easier for a jury to understand.
Why The Type Of Witness Matters
Not all expert witnesses are created equal. An expert who can testify in a copyright infringement case is quite different than one who can testify in your personal injury case. Even within the realm of personal injury, there are different types of expert witnesses.
A medical malpractice case, for example, will require a medical professional to testify as an expert witness. But not just any medical professional will do – it’s just as important to find one within the specialty that is relevant to your case. You wouldn’t want a heart surgeon to work on your back injury any more than you would want one to testify on your behalf.
Other types of expert witnesses can come into play depending on your case. There are mental health professionals who can testify to how an incident has affected your emotional state. There are accident reconstruction experts who are trained to investigate the sequence of events related to a car accident. There are manufacturing experts to testify to a manufacturing defect in a product that led to your injury. And there are other types of witnesses depending on the needs of your case.
Witnesses must be chosen carefully for their area of expertise, and even their specialty within that area of expertise.
A Good Expert Witnesses Relies On A Good Attorney
Choosing effective expert witnesses starts with choosing the right attorney. A qualified, certified trial attorney will understand the nuances of finding, vetting and preparing witnesses best suited to your case.
Unfortunately, it’s too easy to run a Google search on expert witnesses and come up with any number of “hired guns.” Jurors may mistrust witnesses who are perceived as being paid to provide the testimony that your attorney wants, and defense attorneys may undermine your case by asking a witness how much he or she is earning to testify. A good attorney might choose to preempt such challenges from the defense by addressing the issue on a direct examination in a straightforward and factual way.
Jurors may also mistrust a witness if they perceive that the testimony is contrived. Witnesses who are too eager to agree with your attorney, or appear to be providing only the testimony that your attorney wants to hear, can create doubt in a jury’s mind about the witness’s credibility.
It’s up to your attorney to prepare the expert witness effectively. An experienced trial attorney will work with a witness to ensure that he or she understands the details of the case and can give impartial, factual answers to questions. It’s not the witness’s job to agree with everything your attorney says; rather, it’s the witness’s job to provide the facts to support your case. Your attorney should understand the delicate balance between the facts of the case and how those facts are perceived by a jury.
An experienced and qualified attorney will not only know how to choose the right witness and how to prepare one, but will also bring reputation to bear on your case. If your attorney is recognized by the judge and opposing counsel as bringing in qualified, credible and trustworthy witnesses, that can positively impact your case. Conversely, if an attorney is known for hiring witnesses most likely to provide whatever testimony they’re paid to provide, the integrity of your case may be undermined.
What Makes A Good (Or Bad) Expert Witness?
We’ve touched on a few key points that matter when it comes to choosing an expert witness, namely, that it’s important to find one who is qualified in the specialty that your case requires, and one who is credible as a witness.
But even assuming those criteria are met, the most qualified professional can still make a bad witness. For example, some highly trained specialists are simply not good at communicating difficult concepts in layman’s terms. Since the expert is often tasked with the responsibility of educating the jury and breaking down complex details, communication skills are essential. Your attorney can play a role in helping prepare the witness, but ultimately, communicating is the responsibility of the witness.
It’s also possible that your witness is highly qualified and a good communicator, but is tied to some embarrassing or controversial issue that can surface in written articles or on social media. Opposing counsel is sure to jump on any negative perceptions, whether it’s a DWI in your witness’s past or something immodest posted in an online profile. While that doesn’t necessarily disqualify your witness, it does require a delicate touch to manage.
An experienced witness is also an asset. One who has testified in other cases will better understand the litigation process, may have developed ways of communicating to juries, and may be used to the rigors of a tough cross-examination.
Yes, Money Matters
We like to believe in equality under the law but the fact is that trials are costly endeavors. From filing fees to hiring experts, your ability to mount a successful case can depend in large part on your ability to fund it. Many attorneys work on contingency and fund your case themselves, only getting paid out of your settlement – which is why your attorney’s ability to find your case matters.
You can read more about this in a prior article, but to summarize, some attorneys have limited (or no) ability to cover case costs, which means they’re more likely to settle quickly and encourage you to take a lower settlement amount than you might be entitled to just so they can close the case quickly and get reimbursed.
That means you’re less likely to go to trial at all, and if you do, you may not end up with an expert witness who advances your case.
Given the nuances of finding, vetting, preparing and using expert witnesses to help your personal injury case, it’s important to find an attorney who understands the good – and the bad – and how to get the best possible outcome for you.
If you’ve been involved in a slip and fall, a construction accident, car accident, or experienced another related injury, get in touch with us for a free consultation and let us help you get the compensation you deserve.