Expert Witness Blog

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness regarding setting parameters:

When attorneys call, experts must determine from a brief description if the case falls within our span of competence and is ethically feasible. Frequently, attorneys ask us to make a preliminary assessment. That’s not readily doable–or prudent. Attorneys may ask, “Do you think I have a cause of action, here?” Well, perhaps; but no expert should offer an opinion at this stage, nor should we hear any confidential information. For me, the best starting point in determining the merit of a case is reading the petition or complaint (if it has been filed) and, if available, the answer to it. But some attorneys seem reluctant to forward the complaint, let alone pay an expert to review it, who then might pass on the case.

Some advance work can lower this hurdle. Before calling potential experts, attorneys should check their credentials and references to verify that they are both competent in their fields and, above all, have a reputation for integrity. Then, if an attorney wants an expert’s early reading as to the case’s strengths and weaknesses, he or she should be willing to pay a reasonable fee for this. If the expert’s screening suggests a weak case, the attorney cuts losses; if the expert feels he or she can espouse a supportive opinion, the attorney can confidently retain the expert. Either way, the nominal investment is justified.

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes:

It is easier to find current standards than obsolete versions. An agricultural engineering expert may have to do some digging to find the correct version of a standard. Furthermore, obtaining copies of obsolete standards is sometimes difficult since some professional engineering societies do not provide/sell obsolete versions of standards. These older versions, as well as current versions, are usually available from IHS Global (http://www.global.ihs.com). An attorney or expert will often have a choice of buying a hard copy of a standard or opting for electronic delivery. It is necessary to pay for most standards (from any source), and the cost per page can be fairly steep.

Government Standards

Elizabeth G. Rudolph, lawyer, nurse and legal nurse consultant, is the founder of Memphis-based Jurex Center for Legal Nurse Consulting. Rudolf writes on nurses as expert witnesses:

Expert witnesses for legal issues involving medical matters aren’t always doctors because nurses often have more firsthand knowledge about a disputed practice or protocol….”Over the last several years, nurses have been testifying either for or against nurses, and physicians testify either for or against physicians,” she said. “In the past, physicians had been able to testify for or against nurses, and in some jurisdictions they still do. But now judges have wanted nurses for and against nurses, and physicians for and against physicians.”

Once a nurse completes training from an experienced trial lawyer and acquires the required number of hours, he or she can apply for certification from the American Society of Legal Nurse Consultants. This organization does not offer a teaching program but does provide certification…

In The Attorney-Expert Relationship: Unraveling the Complexity, Peter T. Tomaras writes on his experience as a premises liability expert witness:

“I do not want legal research regarding theories, defenses, etc. I want my liability expert to provide opinions on the facts.” That rebuke came from an attorney who did not appreciate my suggestion that he might litigate his case under contract theory (breach of implied warranty) as well as tort theory. To someone relatively new to litigation support, this underscored a fundamental question: What exactly is the expert’s role?

After all, many “facts” are disputable. Proficient experts should perform thorough investigations, during which we may assemble a wide ranging body of relevant information – some of which may suggest alternative paths for pursuing a case. Competent litigation consultants can help attorneys win and triers of fact decide issues fairly. But some attorneys do not want comprehensive case analysis from their experts. Years after that reprimand, I still encounter ambiguity in attorney expectations. While experts should not presume to instruct attorneys on the law, consulting is what we do. Are we not to be proactive in providing all advice we feel qualified to offer? At the same time, to what extent can we involve ourselves while preserving our objectivity should a case go to trial? It is, in the words of Gilbert and Sullivan, “A seeming paradox!”

In Agricultural and Grounds Maintenance Equipment, agricultural engineering expert witness Richard L. Parish, PhD, PE, writes:

When a personal injury or wrongful death case involves agricultural or grounds maintenance equipment, it will usually be necessary to retain an agricultural engineering expert to assist with the case. In most such cases, the agricultural engineering expert should start with a review of relevant industry and government standards. Most of the standards in this field are industry consensus standards, not mandatory government standards. Applicable government standards are few, but important.

Compliance with applicable industry standards is not compulsory, but the failure of a machine to conform to applicable consensus safety standards gives a plaintiff attorney strong ammunition against the designer, manufacturer, dealer, and/or rental agency. Conformance with applicable consensus safety standards is usually not a complete defense, but certainly makes a defense attorney’s job easier.

In Physicians giving expert testimony are regulated by law, professional associations, B. Sonny Bal, MD, JD, MBA; Lawrence H. Brenner, JD write:

Both the legal and medical professions must contend with self-declared expert witnesses, who promote their availability to testify before courts in return for financial compensation. Reports of lucrative compensation for expert witnesses fueled concerns that some individuals were abusing the judicial process, and that the safeguards provided by Daubert and its offspring of legal cases were insufficient to protect defendants from overly zealous expert testimony that might mislead the court and jury, misstate the relevant standard of care, and impede justice.

Professional associations