INJURY LITIGATION: THE ROLE OF EXPERTS

You are a litigant in a personal injury case, and your lawyer has started talking about "experts." What is he talking about?

After initial discovery takes place, including interrogatories, requests for documents and depositions of the parties, the next phase of pre-trial preparation often involves experts. Experts are defined as any person who by virtue of training or experience can assist the jury in their understanding of the issues in the case. This is a broad definition which can include persons versed in many different types of disciplines. In the injury context, the most frequently encountered experts include accident reconstruction experts, physicians or other medical personnel, engineers and economists who calculate damages. There are many other types of experts as well.

Why are experts needed? From a claimant's standpoint, you have the burden of proving your case by a preponderance of the evidence. Experts with proper qualifications can give opinion testimony about pivotal issues in the case which a claimant must prove. This can be enormously valuable. Most witnesses are relegated to testifying about what they saw or observed, without giving their opinions. Experts can fill the void and provide evidence that will allow your case to be decided by the jury, as opposed to being summarily dismissed by the court for lack of sufficient evidence.

Some examples of experts I have used over the years include an elevator expert. This gentleman was able to examine the elevator machinery in a skyscraper and testify (1) how and why the elevator malfunction occurred, (2) how fast the elevator was going when an emergency stop occurred, (3) how far the elevator traveled after the emergency brakes engaged, and (4)how much force was applied to my client's body when he was thrown to the floor of the elevator. Juries want and need this type of information in order to rule in a claimant's favor.

Physician's typically assist claimants by testifying about causation, a necessary element in any negligence case. The treating physician is uniquely situated to testify that it is his opinion that the event in question (i.e. a collision) caused the injury to the plaintiff (i.e. a herniated disc). While the claimant can give this same type of testimony, the authoritative testimony of a physician lends persuasive force to the claim which is needed for an effective trial presentation.

The flipside of this situation is that a claim will be devastated if the treating physician is unwilling to say that the liability event caused the injury to the patient. Defense experts are typically hired for this purpose, though this type of testimony is survivable when the defense witness is a hired expert and not the treating physician. My experience is that treating physicians generally try to be fair and helpful to their patients when appropriate.

Security experts are used in premises liability cases where a property owner or occupier, like an apartment complex or motel, has exposed a tenant or visitor to a criminal attack by a third party. The plaintiff in this situation needs to prove that the property owner failed to maintain reasonable security measures in light of the events occurring at the property prior to the incident in question. The expert will conduct an analysis of physical security measures and prior criminal activity; in a viable case he will express the opinion that the property owner was negligent and the reasons for his conclusion.

When the expert testimony has been obtained, the final pieces are coming into place for the big event - trial. Contrary to some media reports, statistics indicate that trials are occurring less and less these days. I'll comment on the reasons why in an upcoming article.

Copyright 2004 by Schulten Ward & Turner LLP. All rights reserved. For more information contact dlt@swtlaw.com or call 404.688.6800.

DISCLAIMER: THIS ARTICLE IS FOR GENERAL INFORMATION PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. FOR SPECIFIC ADVICE REGARDING A LEGAL MATTER CONTACT COUNSEL OF YOUR CHOOSING.