Many attorneys often ask themselves, “Why should I spend the money to hire an expert?” only to find that the cost in not hiring an expert was far costlier. When an attorney takes on a case, he or she has to prepare their game plan, which may call for the hiring of an expert. If your case is one of a technical nature, hiring an expert is a given. But if your case is pretty simple, you have to ask yourself whether or not an expert will make a difference. To answer this question, you have to begin at the end.
Let’s say that you just presented your case at trial and lost. While polling the jury you discovered that they were confused by what you thought was fairly simple evidence and although you didn’t consider needing an expert, in the end, you lost in part because you failed to put yourself in the juror’s seat. Most jurors are not really excited about serving on juries and would much rather be at work or home. Also, many jurors have never been on a jury before and their first-time experience is nothing like they thought it would be.
Many jurors believe that civil trials are like those they had seen on television where both the plaintiff and defendant rely upon evidence gathered from sophisticated high-tech test results coupled with dramatic and emotional witness testimony only to find the process to be anticlimactic and often boring and become nothing more than a he-said she-said debate amongst attorneys of which at least one had failed to prepare well for trial.
So what’s your game plan? Are you looking to employ an expert or not? If so, how do you know whether or not to hire an expert? If your game plan calls to keep your case short and simple, then going it alone may make sense. However, if you have to establish the standard of care in an area, which few, if any jurors have any knowledge of, you may want to consider hiring an expert.
The Role of the Expert Witness
The role of the expert witness is to take complex material or information and make it simple. Simple enough for any lay juror to understand and use as a basis of rendering a verdict. But not all experts are good at making things simple! In fact, most do the opposite and make what is seemingly simple information complex. If you’re a defense attorney whose game plan is to confuse the jury so they do not render a plaintiff verdict, then hiring such an expert may be an important part of your game plan. However, if you’re a plaintiff attorney, you cannot win your case if the jury is confused.
Establishing your expert’s role is up to you. Don’t over sell their area of expertise. If you do, they may be challenged and excluded. Over the years, I have spoken with many expert witnesses who were excluded from testifying at trial, not because they were not qualified, but rather because counsel exaggerated their qualification by mischaracterizing their credentials, experience and area of expertise. Don’t suggest that your expert will be testifying in an area he or she lacks the qualifications. If you do, there’s a good chance they will be disqualified when challenged. There goes your game plan!
Remember experts do not have a dog in the game. Their role is to provide technical opinions in their area of expertise and do so for the benefit of the trier of fact. If your expert is either a defense or plaintiff advocate, you hired the wrong person. Sadly, this happens quite often. It is common for many defense attorneys who represent insurers to not hire an expert that works on plaintiff cases because the client would not want information presented to the expert to come back and hurt them when the expert takes on a plaintiff case against them. Although this may make sense in some ways, it may cripple your game plan. Hiring an expert that only works for one side or the other means that your expert cannot bring a big-picture view to your case. Since they only work on one side, they only have one view. Hiring experts who work on both sides can see things from both sides and are less likely to be blindsided during their deposition or at trial. However, experts that are one-sided don’t bring as much value to your case than those who are multifaceted and are more prone to impeachment.
In the end, you have to decide how you want to present your case. Some build their case specifically for settlement, while other attorneys construct their case from day one to go to trial. Some experts are great at preparing written reports which can be of assistance if you are building your case for settlement. However, most experts that prefer to present their opinions in written form tend to do poorly at trial where they have to present their opinions orally and in person. You then wind up asking yourself, “Why didn’t they teach me this in law school?” Russell J. Kendzior