Geraldine Weiss About
this Issue
Discovery and Evidence Liability may be a slam dunk, but damages always require a good expert
It’s that time of year again when we
are lucky enough to be able to brush up on our knowledge about experts and damages. This issue will enable you to suc- cessfully do so. You can have a slam dunk liability case, but unless you present your damages appealingly and coherently to the jury, you will never be able to get your client the compensation he or she deserves. Brian Chase gives us a basic primer
on experts which is an excellent reminder for the seasoned and inexperienced trial attorneys alike. As Brian reminds us, the number of fatal errors made even by large firms and experienced practitioners when designating expert witnesses is disconcert- ing. Brian takes you through the process – from your initial consultation with a potential expert – to the CCP compliant rules up to expert deposition. If you read his tips, it will be a good insurance policy as: “Adequate preparation and meticulous thoroughness in preparing expert desig- nations and declarations remain key to avoiding inexpert expert designations.” We do not always have the luxury of
using a seasoned expert. Sometimes we must use someone less knowledgeable and educate them on how to be a good expert witness. For example, the treating doctor is often the best expert for the case, but this doctor may freeze like a deer in the headlights when you mention the words deposition or trial testimony ! Roger Rosen provides tips on how to
craft that potential pitfall into an advan- tage. Lack of experience may have a posi- tive aspect in that the expert is not subject to being attacked as a hired gun who makes a living giving trial testimony. But because the novice expert may be unaware of the basics that experienced experts take for granted, Roger has prepared a primer with a checklist of 25 items of particular interest to consider when working with a novice expert witness.
12— The Advocate Magazine JULY 2011 Defense attorneys often creatively
bombard us with motions attempting to sever the artery of a plaintiff’s case with attempts to exclude an expert because he or she is “speculating about possible caus- es.” Of course, the next words of a wily defense attorney will be a slew of “possibil- ity” defenses that are little more than sheer speculation. As Alan Van Gelder points out: “Anything is possible, but it has to cross the threshold of the probable to be admissible”. Alan’s tips will help you counter these tactics. Pain. Often the overwhelming symp-
tom of your client’s injury. The four letter word which hopefully none of us will ever have to experience in full intensity. But for many of our clients, it is a way of life. Gnawing at them every day, eating away at their souls. Stripping them of ability to work or to get through life without a bat- tery of pills, or worse. Sometimes strip- ping them of dignity and jury appeal, as pain can strip you of communicative skills. How lucky we are that we are not a client who is wracked with pain. But in order to properly represent those clients, we have to understand what they are going through. Joe Barrett and Jack Denove help provide insight in to pain. Jack explains the physiologic response to an acute injury in fascinating terms and reminds us so that we can remind the jury that chronic pain takes away one’s enjoy- ment of life. Joe explains ramification of that hopeless pain and how we must search for the correct medical and/or psychological expert, and consider the loss of past and future earnings calculation. When do you need an expert for
future economic damages? Margaret Stevens will advise you about this in a vari- ety of scenarios. As Margaret points out: “Given the number of published and unpublished cases on appeal in the past year involving admissibility and necessity
of an expert opinion for future economic damages, it is worth taking a little extra time to creatively integrate evidence of your client’s injuries with [y]our expert’s opinions.” Who thought bad-faith cases could be
fun? Try reading the article by Michael L. Cohen & Heather M. McKeon about using claims-adjusting experts in bad faith cases and their six tips to help you win your client’s case. These tips are distilled from the experience they have gleaned representing policyholders in hundreds of cases over the last 15 years and well worth the read whether you do or don’t practice in that area. Punitive damages have been a rocky
road to follow. The latest on punitive damages is explored by Carolin Shining who informs us that several post-Roby appellate cases now provide guidance on how to support higher ultimate ratios. Given continued corporate misconduct and the “profits over persons” mentality often found in defective products cases, she provides us with facts to be developed by plaintiffs’ lawyers in discovery and woven into your themes at trial. And once your damages case is set up
for trial, you need to make sure that Collateral Source issues do not nip you at the ankle. William Newkirk ponders: Whether to Introduce Past Medical Expenses in a Medical Malpractice Case – Concerns of the Collateral Source Rule. Bill thoughtfully provides the latest in the law so that you are armed with the latest in legal ammunition. All of these articles are creative and
valuable. The law is constantly evolving and in order to properly advocate it is essential that we stay up to date with its latest framework and push ourselves not only to respect its confines, but also to lis- ten to creative advice from others how to think creatively outside of the legal box.
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