Lachenmeier, Enloe & Rall - February, 2004 Publication

Expert Witnesses

Expert witnesses can be expensive, and the decision whether to employ one in a particular case depends upon the facts of that case. A good expert, however, can go a long way toward getting a favorable result.

A recent trial emphasized the value of a medical expert. Plaintiffs’ had their chiropractor testify to permanent impairment and non-ending treatment. My expert, also a chiropractor, was very knowledgeable and, I thought, testified effectively, although as he testified I was concerned that he might be going into too much detail. We received a very good result and, since this was a Washington case, I had the opportunity to interview the jury after the verdict was returned. All of the jurors said that they were very impressed with my expert. When asked if they thought he had spoken too long or in too much detail, the answer was an emphatic “no.” By contrast, they all said that they were eager to hear factual information that they could use in making their decision.

Not all experts are as good as that one, but some considerations in hiring an expert are as follows:

Do You Need an Expert?

Oregon Evidence Code Rule 702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Know your Expert

The most important attribute of an expert witness is integrity. Although often accused by plaintiffs’ counsel of simply selling their opinions to the highest bidder, my experience has been that most defense experts are honest in their analysis and testimony. In fact, the only questionable testimony I have seen in the courtroom has been from the other side. Oregon has a fairly small litigation community and experts, like lawyers, can acquire reputations. Make sure yours has a reputation for truthfulness.

Before hiring an expert, find out if she is willing to testify in court, if that is where the case is likely headed. Communication with your expert is obviously very important, so make sure she is willing to work with you and your attorney in case and trial preparation.
Speak the Language.

Experts are, by definition, experts in their field of expertise, not necessarily in effective communication. A good lawyer can assist with this, but the expert must be able to speak in plain language that an average juror will understand. An effective expert also speaks directly to the jury. Some of the jurors in my recent case remarked on how professorial my expert appeared as he looked at them, took off his glasses, and explained his findings and opinions.
Help with Case Preparation

A good expert can assist in identifying weaknesses in your case, and what she expects the plaintiff’s witness to say. Hiring such an expert early on, even pre-litigation, may be beneficial in building a defense strategy, or determining a settlement posture.
Stand up for Themselves.

Experts are generally well-educated and fairly sophisticated, so they may enjoy the intellectual challenge of testimony. In doing so, they may appreciate the nuances of opposing counsel’s questions without an equal appreciation of the danger the question poses. For instance, the opposing attorney may carefully limit a question to a specific fact, in order to build a theory for closing argument. The expert may agree with that specific fact, but at that point must be willing and able to stand up for her opinion and explain why this fact is irrelevant or otherwise does not affect her analysis. The expert has to remember that she, not opposing counsel, is the expert on this particular subject.
Experienced or Hired Gun?

The obvious advantage to having an expert with lots of litigation experience is that she is familiar with the proceedings and comfortable testifying under oath. The obvious disadvantage is that your opponent can characterize the expert as being a hired gun, just providing favorable opinions to the other side in hopes of more referrals. It is helpful if the expert provides services to both sides, but in reality, the defense is far more likely to need an independent expert, particularly in an injury claim. After all, the plaintiff already has a treating doctor to testify. In my experience, juries seem to understand that experts (on both sides) are paid pretty well and don’t penalize an expert for earning a good living doing IMEs
Anything We Should Know About?

An experienced expert witness will be aware of methods of cross-examination used against her in the past. This will sometimes involve disciplinary proceedings or other potentially damaging information. Ask your expert about these, and any other issues that would be potentially embarrassing should it come out. Discuss how best to handle it if it does come up.

Having an effective expert at trial is a dream-come-true, and having one fall apart is a nightmare. Carefully researching your expert before you hire her will maximize the chances of the former and minimize the risks of the latter.

Please direct any questions in this area of law to the author, Tim Heinson, at 503-768-9600, or by email to tim@lerlaw.com.