Choose Wisely: An expert witness can help or harm your case
Aug 07, 2019 11:27AM
By Chris Haire
By Trey Turner and Catherine Ava Kopiec
In products liability cases, quality expert testimony is vital. A good or bad expert is going to do much of the heavy lifting when it comes to either winning or losing, so choose wisely.
However, you cannot stop there. You need to spend significant time working with them throughout the case, including thoroughly preparing them for deposition and trial. Your expert or experts are your key to unlocking the jury or, for plaintiff's attorneys, the pockets of insurance companies, so spend time with them.
When choosing your expert, be sure to know his/her background as well as the background of the opposing party's expert. Think long and hard about hiring an expert who has significantly less academic achievement and/or experience than the other side's expert.
Moreover, as a rule of thumb, only choose an expert who you have personally seen deposed or cross-examined. A great expert witness is a great teacher--someone who can calmly articulate complicated facts to everyday people--and a bad expert is someone who can only tell a story to certain people.
Additionally, everyone reacts differently under pressure. As Mike Tyson once famously quipped, "Everyone has a plan until they get punched in the mouth." If your expert cracks under pressure, your case is going to crack right along with him or her.
Has your potential expert ever given testimony that might be contrary to your client's interests? Check transcripts of the expert's testimony in other depositions and matters. It may be that in the context of other trials your proposed expert had an incentive to take a position different from the one you would like him or her to take in your matter, or it may be he or she made a mistake. Such testimony might not be fatal (or might even help) in the context of the other cases, but could be fatal in the context of yours.
You should also be knowledgeable about a potential expert's online presence. Opposing counsel routinely check (or should) any expert's online and social media presence before taking their deposition. You should, too. Be aware of anything that can be fodder for cross-examination, either in their qualifications or in the substance of their testimony.
Work with your expert throughout the case. This includes communicating with your expert so that you provide them with the information they need (through written discovery or deposition testimony) to form their own opinion or to attack the opinion of another expert. Such communication is invaluable in ensuring that you are fully prepared to take the deposition of other experts in the case. This should include identifying areas of testimony where you will be no match for the opposing expert, your goal being instead to acquire information and lock in testimony that your expert will challenge.
In developing the scope of work for the expert, be sure to think about how you might cross your own expert. For example, the scientific method does not work backward from a preconceived conclusion, and if your expert is doing so, opposing counsel will challenge their method.
Likewise, expect a methods challenge if your expert omits common sense tests. If the issue is whether a plaintiff was injured when her flame-retardant bathrobe caught fire, be prepared to explain why no test was performed showing the bathrobe igniting after a certain amount of time being exposed to a flame.
Prepare your experts for deposition and again for trial. We often take for granted, especially in depositions, that experienced experts will be able to prepare themselves. Sometimes this is true, and sometimes experts get busy.
Schedule substantial time to go over what opinions you expect the expert to give and areas of concern or weakness that need to be nuanced, as well as general facts and opinions. Be sure that your expert rereads any previous deposition he or she has given in the case, and that he or she is familiar with the applicable industry standards and regulations, the common source of "gotcha" questions.
Franklin H. "Trey" Turner III, a shareholder at Rogers Townsend & Thomas, PC, concentrates his practice in the areas of construction defect litigation and products liability. Working closely with carriers, the insured, and carefully vetted experts, he has handled cases from inception to trial, including litigation at the appellate level. Trey served as chair of a standing committee of the ABA Tort Trial and Insurance Practice Section (TIPS): the Torts Products, General Liability and Consumer Law committee. He recently presented at the CLM (Claims and Litigation Management) 2019 Annual Conference in Orlando on construction issues relating to wood-frame buildings.
Catherine Ava Kopiec, an associate at Rogers Townsend & Thomas, PC, focuses her practice in the areas of civil litigation, namely products liability, construction defect litigation, and general insurance defense. She serves on the Young Lawyers Steering Committee for DRI (Defense Research Institute) as marketing chair. She also serves as the Young Lawyers marketing liaison for the DRI Products Liability Committee and is the organization's state membership chair for South Carolina.