Matthew S. Lerner is a partner at the law firm of Goldberg Segalla. He concentrates his practice on appellate advocacy, insurance coverage litigation, construction worksite injury and general litigation. Many professional achievements highlight his career and continuous recognition by his peers is testament to his tireless efforts to stay at the forefront of the practice of law. Mr. Lerner works with liability insurance expert witnesses.
We would like to thank Mr. Lerner for taking the time to answer these questions.
1) What has an expert done that made a positive difference in a case?
A doctor spent a good amount of his own time explaining to me his testing of the plaintiffs and the test results in preparation for trial. His ability to explain difficult concepts to me with everyday examples armed me with information during the pre-trial conference. Because I was able to pinpoint the weaknesses of the opposing counsel’s expert at the pre-trial conference, opposing counsel convinced his client to settle the case for an amount well below her last settlement demand.
2) What has an expert done that hurt their side?
One expert submitted a chapter to a book discussing how to be the perfect medical expert witness on the stand. That expert did not inform my colleague about the recent publication. The chapter was over-the-top and gave opposing counsel a lot of material to cross examine the witness. Because of that publication, we have not used that witness on any other cases.
3) What advice can you give experts to best handle cross-examination?
An expert should know beforehand what points he or she can concede and what points he and she cannot. I’ve witnessed experts turn off jurors by quibbling with every point, even immaterial points. Also, the expert should be prepared to answer how much he or she is being compensated. I’ve seen more than one expert testify that he or she doesn’t know how much he or she is getting compensated. The jurors in both instances stated that the experts’ credibility was undercut based on such testimony.
4) How should an expert answer the question about being paid to provide an opinion?
See above (Question #3). Jurors should understand that experts are being compensated for their time.
5) How should an expert handle evidence that is hurtful to the case?
An expert should address the harmful evidence and give reasons why his or her opinion conflicts with it. People in general are more apt to accept an opinion when it is supported by rationale reasons that are explained to them.
6) What is most important for an expert: qualifications, preparedness, or communication skills?
I think all three are important; however, I think an experts’ qualifications become less important to his or her credibility if he or she demonstrates being prepared and communicating his or her opinions clearly. Preparedness is a must. An expert’s communication skills are extremely important because he or she is testifying to help the jury understand issues that are beyond their common knowledge. Experts who are not pedantic and who help explain difficult concepts in a clear digestible manner gain the confidence of the jurors. Also, an expert who does not waiver and explains why he or she is taking such a hard stance gain a lot of points with the jurors and judge.
7) Is it necessary for an expert to understand the legal procedures of a case?
To a certain extent, an expert should understand a basic framework of the legal procedures. However, experts should focus on the issues for which they have been hired to address.
8) What should an expert be sure to do, or avoid, when writing a report?
Experts should proofread their reports to make sure there are no errors. A lot of times those reports get put before the jurors and glaring errors provide fodder for cross-examination. Also, errors in a report make the retaining attorney less confident in the expert.
9) What makes an expert credible?
A credible expert is someone who has real-life experience in the area of expertise and is ready to defend his or her position and explain his or her opinion. Also, an expert who is polite, but firm during cross-examination and who answers the questions directly gains credibility with jurors and judges.
10) What advice would you give an expert who wants to increase their chances of being retained in more cases?
An expert who keeps current in his or her area of expertise increases his or her chances of getting retained. Writing articles that apply recent caselaw to practical examples will likely gain the attention of attorneys – plaintiff’s attorneys as well as defense. Also, being proactive about the process between attorney and expert makes for less work for the attorney, who likely hire that expert again in another case.