Role of the Expert

Whether you have hired an attorney or choose to represent yourself, experts can play a vital role if you are involved in litigation. From the initial tasks of investigating, verifying, and organizing facts to testifying at trial on your behalf, experts can make or break your case. Therefore, it is extremely important that you do your homework and hire a qualified expert that you trust to handle your case.

  • How does an expert help you or your attorney prepare your case?
  • How does an expert help you or your attorney in the courtroom?
  • When do you need an expert?
  • Do you still need an expert if you plan to settle the case?
  • How do you go about finding an expert?
  • What types of qualifications should you look for?

    Q: How does an expert help you or your attorney prepare your case?

    A consulting expert can be used to investigate the facts of a case; to research the technical, scientific, or medical issues involved; and to help a client and his or her attorney gain a better understanding of how best to present a successful case. A consulting expert is retained to educate the attorney and the client on issues relating to the expert's area of expertise as those issues relate to the case at hand. Communications between an attorney and a consulting expert are covered by the attorney client privilege, and the attorney is free to discuss trial strategy issues with a consulting expert. This is particularly true in cases involving such issues as medical malpractice, toxic torts, and environmental wrongdoing, in which applicable law relies heavily on scientific, medical, or technical determinations to establish wrongdoing. A consulting expert may later testify at trial, in which case he or she would be referred to as an expert witness.

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    Q: How does an expert help you or your attorney in the courtroom?

    In the courtroom, an expert can assist the attorney and the client by testifying on behalf of the client. In that role, the expert would assist the court and the jury to understand the medical, scientific, and technical issues as these relate to the client's case. The expert's credentials can strengthen a client's case in the eyes of a jury.

    The expert can also help spot the weaknesses in the scientific, medical, or technical credentials or testimony of an opposing party's expert witness and assist the attorney in developing lines of inquiry for cross-examination of the opposing party's witnesses.

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    Q: When do you need an expert?

    Under the Federal Rules of Evidence, an expert is appropriate when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact at issue in a case. A client and his attorney would ordinarily seek the assistance of an expert where a key issue in the case depends on understanding evidence that is not within the common knowledge of the judge and jury. For example, experts are often used in cases dealing with medical malpractice, toxic torts, racial or gender discrimination, and environmental pollution because these cases call for the introduction of evidence that is grounded in obscure terminology, specialized knowledge, and mathematical or scientific analyses not ordinarily within the common knowledge of the court and jury hearing the case. The increasing role of computers and electronic information systems in everyday transactions forms a good example of the need for experts because although both court and jury may be familiar with the use of a computer for electronic communications, neither is likely to have a common-sense understanding of how electronic information is stored, retrieved, destroyed, or reconstructed.

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    Q: Do you still need an expert if you plan to settle the case?

    Even a client intends to settle litigation before it reaches trial, the client and his or her attorney will often benefit from consulting an expert so as to gain a better understanding of the relative strengths and weaknesses of the client's case. For example, a consulting expert may perform an accident reconstruction analysis, to help the attorney determine whether and to what extent negligence can be established. These early pretrial investigations can be invaluable in assisting the client and the attorney arrive at a fair approximation of the worth of a case.

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    Q: How do you go about finding an expert?

    Finding an expert is not hard. Finding a credible expert with the proper credentials is a different matter. Bar journals' advertising sections often include ads from persons holding themselves out as experts in exceedingly broad areas. These guns for hire often describe their participation in successful litigation for both plaintiffs and defendants alike. An attorney interested in hiring a credible expert witness whose credentials will withstand the scrutiny of opposing counsel would do well to look in the halls of academia, in the lists of contributors to major peer-reviewed professional journals, and in the lists of persons who receive awards and recognition from their professional peers. Professional associations, such as medical or scientific societies can provide information about persons considered experts in their field.

    One good place to start is Martindale-Hubbell's Experts & Services. From there, you can access information about more than 50,000 experts and professionals by searching within categories and/or with specific search terms. This will help you narrow down the list to find the expert most suited to handle your case.

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    Q: What types of qualifications should you look for?

    Whether an expert will consult only or will testify at trial, the qualifications remain the same. The expert needs to have specialized education, knowledge, skills, experience, and training in the area of expertise, and the expertise must be directly applicable to the issues in the case.

    The educational credentials are established through the expert's college degrees as well as the reputation of the institution that awarded the degrees.

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