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Anatomy of a Civil Trial


will be brought to testify at trial. While that might be part of it, the complete truth is a bit more complex. Oftentimes the defense lawyer will retain multiple experts of the same specialty not just to glean from the pool the sharpest or most impressive witness for trial, but additionally to utilize multiple experts to most effectively counter the opinions of the plaintiff's expert. In other words, a defense lawyer who knows what he is doing will mix and match the testimony of his experts so as to produce the strongest possible counter to each of plaintiff's expert opinions. In a medical negligence case it is not uncommon for the


plaintiff to identify one or two experts in the specialty of the defendant healthcare provider. Because the plaintiff has the burden of proof, it is likely that the standard of care testimony offered by her experts is almost certainly going to be virtually identical in substance, and for good reason. A plaintiff cannot afford to have her experts offering divergent or incomplete opinions regarding the most important testimony in the case, i.e., that the defendant healthcare provider was negligent and that his negligence caused damages to the plaintiff. Te practical result of that fact is that the plaintiff really only has one set of expert witness opinions. Defense experts are not so limited. Tey do not have to


traverse the entire universe of opinions offered by plaintiff ’s experts. A defense expert can, of course, offer opinions regarding each of the standard of care, causation and damages issues addressed by the plaintiff ’s experts, but he does not have to do so. In particular, defense experts are often asked by counsel not to address aspects of the case where their opinions could potentially open the door for an attack by plaintiff ’s counsel. As a simple example, one of the defense experts will tell counsel there was no negligence and no causal connection to the damages. A second expert might indicate to counsel that he feels comfortable testifying that there was no negligence, but that the alleged damages were caused by the act of the defendant. In such a circumstance it would not at all be unusual for defense counsel to identify and plan to use both experts at trial. Te second expert would simply be instructed by counsel to testify that he has no opinions about causation in the case. Because of this expert flexibility, a defendant is much more likely to identify “causation only” or “damages only“ experts. So, what does this have to do with effective cross


examination? Te answer lies in recognizing and understanding why a defense expert who appears to be perfectly capable of offering expert testimony on an important aspect of your case


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