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How to Deal With Your Expert Witnesses Effectively


Eric N. Stravitz Expert testimony can make or break your case. Expert-


related expenses are nearly always the largest expenses in our cases. Unlike defendants in medical malpractice or products liability cases, we rarely have the luxury of naming multiple experts in a particular specialty and thus, cannot easily replace experts if problems arise. For this reason, it is essential that we handle our expert witnesses with extreme care. In seventeen years of litigating cases, I have found the following keys to the care and feeding of expert witnesses: (1) careful selection; (2) early preparation (this applies to both lawyer and expert), and (3) thorough preparation for testimony.1


I. Selection Do you really need an expert? Remember that if the expert


will not be testifying about matters beyond the ken of the jury, a judge will likely find that his testimony does not “assist the trier of fact” and preclude it. See Maryland Rule of Evidence (MRE) 5-702. Once you’ve determined that you need an expert, review the file to see if you have to find one or if he or she has potentially been chosen for you (e.g., a treating doctor). Regardless, you should thoroughly vet any potential expert.


1 None of the suggestions in this article should be interpreted to constitute a statement of the legal standard of care.


MAJ’s listserv -- and those of other trial lawyer associations are invaluable when learning about possible experts. A Google search is a must: I recently “Googled” a possible toxicologist for a Virginia case and learned that a Judge had excluded his opinions.2


I prefer to avoid experts who advertise, unless I’ve


exhausted all other options. Similarly, I try to avoid experts who no longer do the thing that made them an expert in the first place (i.e. surgeons who no longer operate). In a medical malpractice case alleging a deviation from the standard of care, the best practice – given the uncertainty of the statute and the cases interpreting it – is to select and have testify a physician with the same board certification as the defendant physician. See Cts. & Jud. Proc. Code Ann. § 3-2A-02. Once you’ve narrowed down your search to a few experts,


review each candidate’s resume and fee schedule. Before you commit to an expert, get a sense of the scope of work anticipated by the expert and its cost. You don’t want to find yourself arguing with your expert about his or her fees. Also, you don’t want your fact-finder to view the expert as a greedy swine. Some lawyers prefer to memorialize such agreements in writing and have their experts sign them. Because I assume


2 In trial, unless the judge disproves, I refer to opinions as “conclusions.” See David Ball on Damages (2d ed. 2005). For the purpose of this writing, however, I will refer to them as the more commonly used “opinions.”


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