Expert Witness Blog

Since 1991 ForensisGroup, Inc., has referred consultants, expert witnesses, forensic experts, and investigators in most technical, construction, medical, scientific, and engineering disciplines. Director Mercy Steenwyk advises legal professionals to keep these things in mind when looking at expert resumes, curriculum vitae (CV’s), and profiles:

1) Many areas of expertise might be satisfied by a range of disciplines.

Depending on the circumstance and the investigatory aims, fire cause and origin investigations may call for scientists, engineers, or skilled technicians in the building trades. Similarly, a given mold issue may be resolved by a medical toxicologist, general physician, environmental or occupational health expert, architectural engineer, or general contractor.

2) The only way to know for sure what areas of expertise an expert has is to speak with them.

No profile or resume is capable of summing up a lifetime’s professional experience. It is always beneficial to let us put you in touch with experts whose unique understanding and experience might favorably impact the outcome of your case by illuminating the technical issues involved.

For more, go to http://www.forensisgroup.com/

When researching a machinery expert witness, look for the expert who can provide analysis, reports, exhibits, and testing facilities. Eckstine & Associates, Inc., advises that the testing facility should be capable of conducting detailed experiments, performing accident reconstruction, conducting complete testing, and verifying failure analysis. Since trial exhibits and visual aids play an important part in contributing to the understanding of the facts of any case, look for CAD design and manufacturing of mock-ups and trial exhibits as well as conventional drawings, animations, displays, warning, charts and models.

For more, see http://www.eckstine.net/

Hiring a construction expert witness early on in your case is advantageous for several reasons. These expert witnesses may opine and write reports on construction investigations, construction standards of care, construction cost estimates, general contractors, licensed contractors, and construction disputes. They can also help:

Prepare discovery requests;
Prepare other witnesses and clients for their depositions;
Provide answers to discovery;
Support & oppose summary judgments.

If your case warrants it, it may be advantageous to hire more than one expert witness. For example, in an airplane case, you may need to select from the following types of aviation expert witnesses:

aircraft accident reconstruction expert witnesses
aviation training expert witnesses
aviation accident analysis expert witnesses
aviation security expert witnesses
air traffic control expert witnesses
aircraft accident investigation expert witnesses
aircraft contract manufacturing expert witnesses
aircraft design expert witnesses

As much as possible, the experts should be instructed to avoid contact with each other to ensure that one will not "contaminate" the other(s).

Be sure to research and give serious consideration to the area of expertise you will need in an expert witness for your case. A few hours on cases analysis and background reading can save wasted time and money later down the road. If the case warrants it, it may be advantageous to hire more than one expert. For example, in an accident reconstruction case, this will allow you to:

1. Have the accident reconstruction expert witnesses compete and select the stronger one to testify at trial

2. Designate both as trial experts but keep one in reserve

3. Keep one expert as a consultant for testing untried theories

An aviation expert witness may have experience as an aviation engineer. Aeronautical engineers are responsible for the design and testing of commercial aircraft, special purpose aircraft, missiles, space vehicles, and satellites and may opine on aircraft loss of control and airworthiness. Aerodynamic or thermodynamic engineers work on the development of systems and may testify on flight dynamics/aerodynamics and aircraft system-subsystem/failure analysis. Other engineers focus on more specific aspects of aircraft design such as battery technology and propeller design and may report on product liability and accident investigation and reconstruction.

Premises liability expert witness Fred Del Marva explains standard of care in premises liability cases.

It is common knowledge that premises owners are not the insurers or guarantors of their invitees' safety. The duty imposed on them is to provide a safe and secure environment, and to provide reasonable care.

This duty is achieved by requiring premises owners and operators to develop and implement policies, procedures, and protocols that will either prevent or deter what is reasonably foreseeable.

Operational practices, including policies, procedures, and protocols that might be reasonable for one business or location might not be adequate for others.

In medical malpractice cases, the central issue is whether the defendant doctor had applied the degree of skill, knowledge, and care ordinarily exercised by other members of the medical profession under similar circumstances. Although this is left to the trial judge's discretion, a physician or surgeon must usually have some occupational experience in the particular field at issue in order to testify as an expert witness. In a neurology malpractice case, the neurology expert witness would be expected to be experienced in issues such as ruptured aneurysms, seizures, spinal cord injury, head trauma, and strokes. Special qualifications may be required in emergency room physician cases. For example, in California the court can admit expert medical testimony only from a doctor who has had substantial professional experience within the previous five years as a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department.

When selecting an expert witness, choose the one best qualified and make sure that the expert's work on the case is better than that of the opposing expert. When possible, the expert witness should adhere to the scientific method by testing and confirming each underlying fact or premise in your case. For example, the anesthesiology expert witness testimony should be based on similar observations and tests as opposed to mere thoughts. This has two advantages. It allows you to test the expert's thesis for accuracy and it provides a firm basis for arguing why the judge or jury should accept the proven opinions of your expert.

An expert witness's qualifications to testify may be challenged when the witness is qualified as an expert in one area, and the attorney asks for the expert's opinion in a related area. The closer the new area of inquiry is to the area in which the witness is clearly qualified as an expert, the more likely the judge will allow the witness to give an expert opinion. For example, a nursing home expert witness may be able to testify regarding assisted living, geriatrics, etc. Professional degrees, training, and education are not necessarily required. Practical experience may be equally suitable. Since judges have leeway in making evidentiary decisions, best arguments in the case should be made in the trial court. There is little chance of reversal on appeal for errors concerning an expert's qualifications.

There can be advantages in using an expert witness who has never testified at trial before. Juries may respond positively to an expert who avoids the "hired gun" or "professional witness" label. Whether auditioning the expert who has never testified or the seasoned expert, it is important to determine whether the expert can respond well to instructions, has jury appeal, and can stand up well to cross-examination. When hiring an education and schools expert witness, for instance, can they explain their areas of expertise such as special education, school districts, staff dismissal, and staff hiring, clearly to the jury?

Hiring the child abuse expert witness early on in your case will benefit you in several ways. These include:

1) The expert can advise you of past or pending cases with similar issues involving the physical, emotional, or sexual mistreatment of children.
2) They can put you in touch with the attorneys and witnesses from those cases.
3) They can suggest other expert witnesses and identify opposing experts. When appropriate your expert can go to the place where the case occurred and examine the evidence.

Retain your expert witness as early as possible. The first advantage is that the expert can help you decide if the case is questionable or a no-merit case before you have spent time and money on it. If that determination is made, defense counsel will gain strength in their argument for summary judgment or a lower settlement.

The expert can also educate you to gain a working knowledge on an esoteric subject. For example, a weather and meteorology expert witness can supply books and articles for you to get an understanding of aviation meteorology, air dispersion, air visibility, and satellite imagery analysis, as well as other topics.

When hiring an expert witness, contact the expert personally. Determine that there is no conflict of interest and that they have the expertise necessary for your case. Also take into consideration that expert witnesses may be hired as consultants. For example, a toxicology expert witness can help you evaluate your case, assist in developing the case, educate counsel, and suggest experts to be hired to testify. They will be knowledgeable and can opine regarding toxic chemicals exposure, asbestosis, benzene, carcinogenesis, chemical burns, and chemical spills as well as provide reports on chemical toxicology, drug toxicology, and forensic toxicology.

Since jurors sometimes give more weight to expert witness testimony than to lay opinions or closing arguments, finding topics in your case that are sufficiently beyond common experience will permit expert testimony. You may need to be imaginative in coming up with ideas for expert testimony. For example, industrial hygiene expert witnesses can be used in many ways. They are prepared to opine and write reorts on chemical hygiene plans, environmental management systems, industrial accident reconstruction, industrial chemicals, industrial chemical toxicology, industrial cleaning, industrial exhaust systems, industrial hygiene engineering, and industrial toxicology, among other topics. If your expert is not allowed to testify, be prepared with other testimony or evidence. It may also be possible to include the information in your closing argument.

In Testimony From Experts In Demand Tyler Kekewich of the Financial Post describes expert witnesses:

You've seen them in movies and watched them on television. They are the superstars of a trial and their testimony can make or break a lawyer's case. They're expert witnesses -- from coroners to accountants, engineers and scientists -- and judges and juries hang on their every word. They can be the difference between acquittal or conviction or reaping a huge damage award versus being left with nothing but a big legal bill to pay.

1. Highly intelligent - Most expert witnesses are professionals, such as doctors, chartered accountants or scientists.

2. Inquisitive and thorough - Expert witnesses need an eye for detail. Incomplete, vague, or careless testimony will be picked apart by a skilled lawyer.

3. Good communicator - Experts must explain technical data and jargon to a wider audience of people who might not understand it.

4. Concentration and focus - A complex civil lawsuit can drag on for years and an expert's testimony can last days.

5. Patience and discipline - Experts must often repeat themselves in court so they must be prepared to constantly go back over the same testimony.

In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. In this excerpt they write on anger management.
The adversarial legal system is dependent on the assumptin that decision makers are rational, unbiases, and not strongly predisposed. The plaintiffs' bar recognizes that this paradigm can be altered by their trial strategy, which can benefit the plaintiff's case mightily.

In recognition of this fact, the plaintiffs' bar has developed aggressive discovery initiatives, questioning techniques, order of proof strategies and expert witnes presentations that, among other things, are geared towards capitalizing on the tarnished reputation of Corporate America.

The plainfiff's goal is to capitalize on the tarnished image of Corporate America, by creating anger and suspicion on the part of the juries toward the defendant, with the arguments developed from the implementation of these stragegies in hand, plantiffs' counsel angle to generate as much anger against the corporation as they can. They recognize what we all intuitively know from our own experiences; what is rational is of en overcome when anger holds sway. In our own lives, we have all observed time and again how passion overwhelms reason.

Excerpted from Jury Psychology Can Undermine Plaintiffs' Expert Witnesses, For the Defense, December 2007.

In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. In this excerpt they explain the role of jurors in analyzing the credibility of expert witnesses:

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In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. In this excerpt they explain the role of jurors in analyzing the credibility of expert witnesses:

Even before the Enron scandal, a survey found "that a majority of jurors are predisposed to believe an individual's version of events in any dispute with a corporation." The Wall Street Journal, Nov. 13, 1991 at B5. After the litany of scandals that followed Enron, the problem was compounded. The Wall Street Journal verified what many trial lawyers have recognized; increasingly we are confronted with a "new class of jurors."

The members of this class have been displaced by economic chaos - environmental disasters, and "down-sizing" - and they are now feeling insecure, vulnerable and bitter. They blame, among others, Corporate America for their plight. These individuals contribute sigificantly to the volatility of jury verdicts.

In Using Vocational Rehab Experts and Life-Care Planners to Prove General Damages, author Geoffrey S. Wells discusses the use of vocational rehabilitation and life-care planning experts. He begins by telling us that the use of a vocational rehabilitation expert and a life care planning expert witness is even more important today than it has been in the past.

This is due in part to the jury's overall skepticisim on general damage awards. It is not uncommon today to hear a juror during jury selection say something to the effect that "I have no problem awarding damages that are actually provable, such as lost wages or medical costs in the past and the future, but I have a real problem with pain and suffering damages." The plainfiff lawyer's ability therefore to provide actual economic numbers for the jurors is more important today than it has ever been in the past.

In Jury Psychology Can Undermine Plaintiffs' Expert Witnesses authors Neil Goldberg, John Freedenberg, Joseph Mooney, and Joseph Hanna write that cross examination of plaintiff's expert witness should be geared to thwart the emotional hijacking of jurors that plaintiffs endeavor to secure. This strategy includes hiring a jury consultant expert witness. They explain:

Most trial attorneys are familiar with the Chicago study that found that 85 percent of jurors vote after deliberation in a manner consistent with the impressions they developed after the opening statements. A study conducted by Angela Abel of Decision Quest distributed at DRI's 2006 Preeminent Trial Lawyer Seminar found that the ultimate evaluation a juror reaches in a case on both liability and damages essentially remained unchanged by the voir dire process. One interpretation of these two poignant nuggets of information is that at the moment of accountability, when many jurors engage in the deliberation process, the critical factor that most significantly influences how they analyze the case is their longstanding predispositions.
Determining what those longstanding predispositions are and what themes will influence jurors the most are reasons defendants in catastrophic injury cases more and more find that there is great value in engaging in "mock jury" exercises.