Another approach is to write your article on how to cross examine the opposing expert in your field. Many such articles are published in legal magazines. In this type of article, you could give advice on the following questions:
• What questions should be asked that will open doors to more information, or close doors on the opposing expert’s opinion on a particular issue?
• How can an attorney ferret out information from an opposing expert? What may an opposing expert be hiding?
Writing an article is one of the best educational marketing tools available to you as an expert witness. In deciding what topic about which to write, answer questions such as these in your article:
• What are the key issues in your field, and how should an expert be able to address them?
• What should an attorney know when they have a case in this area?
University of Missouri-Columbia law professor Phillip G. Peters, who examined 17 years of medical malpractice cases, is about to publish his findings in a law review article entitled “Doctors & Juries.” In it, he looked at various studies where independent expert witnesses reviewed cases. He found that juries agree with these independent experts over 80% of the time, suggesting that juries are not that far off the mark. However, looking at this statistic the other way, physicians would be alarmed to find out that there is up to a 20% chance that they will be found liable in a case that lacks merit in the eyes of independent experts. Overall, juries are so reluctant to hold physicians liable that they render defense verdicts in half of the cases that independent medical experts think plaintiff should win.
Professor Peters concludes that his research shows that it is very difficult for plaintiffs to win a medical malpractice case at trial. This would largely explain why so many medical malpractice cases are settled outside of court.
A new magazine called “Plaintiff magazine” will debut this summer. Published by the same company that issues “The Advocate” magazine, the target market will be plaintiff attorneys in Northern California.
The magazine has announced that its March 2008 issue will focus on expert witnesses.
As stated by the publishers of Plaintiff:
Dr. Andreas A. Theodorou, a pediatric expert witness, testified that the 2005 death of a 16-month-old child likely stemmed from a deliberate violent injury. Emily Mays died in Aug. 24, 2005, while in foster care. Her injuries included a subdural hematoma, or bleeding on the brain. The foster parents told authorities that Emily hit her head when she fell against a changing table in their home.
As reported in the Tuscon Citizen, the expert witness testified:
“The force it takes for a subdural hematoma is substantial, like falling several stories, being flung to a wall or a high-speed auto accident. It’s not caused by rolling off a changing table or by a linear fall of a few feet.”
The Indiana Supreme Court was scheduled to hear arguments last week on whether state courts should be required to pay for translators to assist defendants who do not understand English. This brings up an interesting debate as to whether state courts should be required to pay for expert witness fees as well.
Many state courts, including Indiana, will pay for some expert witness fees for defendants who cannot afford them. This is usually the case when the defendant is represented by a public defender. When the defendant has his or her own private attorney, most courts will not allow the state to pay for expert witnesses. As stated by one judge, “if you can afford your own attorney, you can afford your own expert witnesses.”
If you are an expert witness writing an article, it is imperative that you give the attorney something of substance. As you write your article, continually ask, “Would this information be helpful to an attorney who had a case in this area?” If you are not sure, ask an attorney to provide feedback. A managing editor of a large legal publication stated: “We do not accept sales pieces. We want substance. I advise authors to submit something that will be valuable to readers who want to know more about a particular subject matter.”
Your article should not be self promotion. Do not talk about your qualifications directly, and do not use the word “I” or “me.” Instead, demonstrate your knowledge by authoritatively discussing issues involved with your area of expertise. Don’t tell the attorney you are the expert – show them you are by competently discussing the subject matter.
As an expert witness, one of the best ways to get known to a large number of attorneys is to demonstrate your expertise through a well written article. This type of “educational marketing” is also one of the most cost efficient marketing avenues.
Why Writing Articles is Important
Attorneys are only paid when they are billing a client for legal work. Therefore, most attorneys do not take the time to learn what questions to ask before retaining an expert. Make it easy for attorneys. Inform them what they should be looking for. When you help attorneys understand your area of expertise, you are leading the attorney to contacting you when they receive a case in your field.
Articles have a desired “stickiness” to them – attorneys hang onto them. It is common for attorneys to save articles that are helpful to their practice, and to make copies for other associates. Partners often make copies of the articles, and pass them down to younger associates. Attorneys will often take their file of such articles when they change firms. Make sure the attorney takes your information with him or her by writing a valuable article.
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Expert witness should conduct necessary tests and investigation, and not just rely on others or risk being excluded. In Mitchell v. Gencorp, Inc., 165 F.3d 778, 779 (10th Cir. 1999), the plaintiff contended he had developed leukemia from regularly working in an unventilated room where hazardous materials were stored. The court excluded the industrial hygienist expert, noting that the expert merely studied photographs of the room and material-safety data sheets listing the chemicals stored there. The expert “never visited the flammable room and conducted no air tests to demonstrate [the plaintiff’s] level of exposure to the chemicals. Moreover, he did not attempt to re-create the level of exposure through computer modeling.”
It is commonly understood that despite the fact that one party retained and paid for the services of an expert witnesses, experts are supposed to testify impartially in the sphere of their expertise. See Selvidge v. U.S. 160 F.R.D. 153. However, the court in Wilson v. City of Chicago stated that the Federal Rules of Evidence do not require experts to be impartial. (6 F.3d 1233, 1238).
If experts are not advocates, at the very least they advance the cause of the party that retained them – otherwise they would not be there. By the time of the trial, the retaining attorney knows how the expert will testify. It is unlikely that the retaining attorney would call the expert if the expert did not testify in favor of the retaining party.
