Retaining an expert witness is expensive and may not be necessary in every case. Don’t try to keep up with the Jones & Jones firm: Just because the other side has an expert or because experts have traditionally been used in similar cases doesn’t mean you need one. And if you decide you do need an expert, make sure it’s the best type for your case.
A handy way to help decide whether an expert is needed is to analyze the pertinent jury instructions. Try to determine the respective burdens of proof as required by CACI 200—once the elements of each party’s burden are succinctly stated, it’s generally apparent whether one or more of those elements “is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Evid C §801(a).
Campbell v General Motors Corp. (1982) 32 C3d 112, 124 provides a helpful example: The appellate court held that the jury, without expert testimony, was capable of deciding whether a bus was defectively designed because it lacked any grip within reach of the plaintiff’s seat, from which she fell when the bus turned. In so holding, the appellate court reversed a nonsuit that had been entered in the bus manufacturer’s favor because of plaintiff’s failure to call a design expert. Campbell teaches a twofold lesson:
- Counsel shouldn’t automatically hire an expert just because technical matters are involved; and
- In borderline situations, the savings produced by not calling an expert are often offset by the expense and delay of a protracted appeal.
When there are matters beyond common experience and you decide to bring an expert on board, make sure to give serious consideration to the exact kind of expert or type of expertise that you need.
Here’s an example: You represent a plaintiff who has suffered greater injuries than are usually encountered in a relatively low-speed, rear-end car accident when the seat back or head restraint fails. You need to find an expert who can account for the enhanced injuries. At first it might seem that using a doctor who specializes in the particular injury suffered would be enough. But to bring a products liability case against the car manufacturer, you’ll need expertise not just in the diagnosis and treatment of back and neck injuries, but also in the causative mechanisms that can produce more extensive injuries. Most orthopedists and neurologists won’t have the engineering background to offer expert testimony on that causative link, just as most engineers lack medical training. To bridge this interdisciplinary gap, consider retaining a biomechanic, who has the requisite skills and training to offer expert opinion on the effects of various physical forces on the human anatomy.
A few hours spent in case analysis, discussion with practitioners experienced in the area, and background reading to pinpoint the exact kind of expertise required, can save countless dollars, wasted hours, and untold grief later in the proceedings. And on the flip side, failure to retain the right kind of expert creates the risk of a nonsuit for not establishing a prima facie case at trial, and possibly even a legal malpractice action for breach of duty to retain a particular type of expert.
Before you choose an expert, review the types of experts and where to locate them in CEB’s California Expert Witness Guide, chaps 6-7.
Other CEBblog™ posts you may find useful:
- Choosing an Expert Witness: Insider or Outsider?
- 10 Tips for Choosing the Best Expert Witness
- Expert Advice: An Expert’s Tips on What to Look for in an Expert Witness
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