Building Your Case With Expert Witnesses by Diane M. Littlepage & Jennifer S. Lubinski
Writing an article about how to deal with expert witnesses is a little like writ- ing an article about how to try a case: there are a few relatively simple rules with lots of exceptions. Still, because experts are at the core of so many cases, lawyers should be prepared to deal with them effectively. The most prestigious physician in the world will do your client no good if her consulting fees wipe out the bottom line. First, a few words about what this article will not cover. This is not intended to be a treatise on the law of expert witnesses, although we will touch on some particu- larly relevant points, such as the recent changes in the law concerning discovery of expert income. We also will not cover tactics for dealing with your opponent’s witnesses. Instead, this article will deal with the practicalities of using experts: finding them, paying them, and using them to prepare your case. Obviously, when you review a new
matter, you should ask yourself whether an expert will be needed at all. For run- of-the-mill personal injury cases filed in District Court, a § 10-104 notice will of- ten be sufficient, if not ideal. You should know your jurisdiction. A report that may be particularly persuasive before one court may mean nothing to another. If you in- tend to rely solely on a § 10-104 notice, make sure, well in advance of trial, that the reports you will submit are clear, con- tain no obvious errors (such as referring to the incident responsible for the injury as a slip and fall rather than an automo- bile accident), and - we shouldn’t have to say this - are helpful to your client. De- fense counsel will have an opportunity to submit records if he needs to. Don’t do his job for him. On the other hand, if the case merits the expense, it may be worthwhile to bring a live expert to trial in smaller personal injury cases. Live testimony is particu- larly helpful in cases with unusual or complex fact or medical issues. Some at- torneys have such cases reviewed by experts who are otherwise unconnected with the case. The advantages of this type of arrangement are that you can choose an expert with witness experience and who may be better credentialed that your client’s treating physician. On the other hand, use of outside experts may leave you
Spring 2000
vulnerable to a “hired gun” argument and may cause the fact finder to wonder why you didn’t bring a treating physician to court. We prefer to use treating physi- cians whenever possible. Certain cases by their nature require that you use an expert. Medical malprac- tice cases are an obvious example. An expert within the relevant area of specialty must be consulted prior to bringing suit. Products liability cases similarly require dealing with an expert early on. Serious personal injury cases will also benefit from early discussion with experts, whether physicians, life care planners, rehabilita- tion specialists, or economists. How you negotiate this sometimes tricky path will influence - perhaps even determine - the result of your claim. Our practice is to create a “map” of
experts in the early stages of each case. Many attorneys think only of medical tes- timony when they are preparing a new matter. It is important to plan ahead and consider the elements of your case-in-chief long before you have a trial date. Will you need an economist to prove lost earn- ings? A life care planner? Will you need an expert to prove causation? By map- ping out your expert needs well in
advance, you will be better able to evalu- ate the strengths and weaknesses of your claim and to handle them accordingly. In addition, you will want to have your ex- perts work together to the extent possible, so each witness is familiar with the “big picture” of your client’s story. Once you know you need an expert,
you will have to find one. There are many traps here for the unwary. To begin with, we strongly recommend against the use of expert “services.” Services act as clear- inghouses for experts and promise to match you with an expert best suited to the circumstances of your case. The ex- pertise of the people performing the matches varies widely - some are experts themselves within a field of specialty. Others are lawyers who may or may not have litigation experience. Others have little expertise. The worst by far are com- panies who actually offer questionable certification exams to experts, then mar- ket those experts to you. In general, an expert obtained through a service may not be credible before a jury. In medical cases, a subsequent treat- ing physician is often a good place to start.
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Diane M. Littlepage (Diane M. Littlepage, P.A.) received her J.D. from the University of Baltimore School of Law and is also a registered nurse. She is a member of the MTLA’s President’s Club as a Founder. Ms. Littlepage is a member of the Anne Arundel County Bar Association as well as the American Association of Critical Care Nurses and the Chesapeake Nurse Attorneys. Her practice concentrates in medical malpractice.
Jennifer S. Lubinski is an associate with Diane M. Littlepage P.A. She received her J.D. from the Catholic Univer- sity Columbus School of Law. Ms. Lubinski serves on the Trial Reporter Committee as an articles editor, and she is also a member of the Public Education Committee. Her practice concentrates in medical malpractice, personal injury, products liability, and workers’ compensation.
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