Legal: Before the Trial – What is an Expert Witness?
During litigation, there are many steps involved in preparing a case for trial. Unlike those all too familiar television shows and movies where everything from the event (a crime, for example) through trial occur nicely within 1-2 hours, trial preparation in real life is much more of a process that often takes months or years. Trials are just one step in the process, as are determining what type of witnesses you need to prove the allegations you are making in the lawsuit. There are two main types of witnesses – fact and expert. A fact witness, as the name implies, is testifying to something they know and/or saw, such as an eyewitness to a car accident. An expert witness is someone who is called to testify as to their opinions based upon their experience and education. Any experienced litigator will tell you that expert witnesses are vital in litigation today, and are frequently becoming the difference between winning and losing a case.
As an example, let’s imagine a two car accident occurred at an intersection, where there is an argument over who had the right of way. A person in one car (Car A) is badly injured and claims that they had the right of way, while the person in the other car (Car B) claims they were the one with the right of way.
In this day and age, this scenario suggests the potential need for several types of expert witnesses. First, when two parties both differ on how an accident occurred, an accident reconstruction expert will likely be needed to establish an opinion on how the accident truly occurred. An accident reconstruction expert is specially trained in the mechanics of auto accidents, how cars react in accidents and determining who is at fault, if anyone, for an accident. Very seldom are there actual, reliable eye witnesses to an accident. Therefore, the next best witness is an expert who can reconstruct how the accident happened for the judge or jury.
Therefore, the accident reconstruction expert assists in determining how the accident occurred and how the various parties were involved. In the scenario above, the driver of Car A has severe injuries, needing years of treatment potentially. The driver of Car B counters that the driver may be injured, but there is no way to prove the injuries were the result of the car accident. In this situation, I have found the use of biomechanical engineers to be highly effective with juries. A biomechancial engineer is a specially trained engineer that takes the reconstruction of the accident and looks at it in terms of how the person(s) was injured. This often involves full animation reconstructions of the accident, where the biomechanical engineer creates an animation that shows the judge and jury just how the accident occurred, and more specifically, how the person’s movements from the point of impact until the cars come to rest resulted in the injuries.
Another type of expert witness are the treating medical providers for the injured. It is not sufficient for an injured party to testify in court that they were injured and suffered medical bills as a result of the subject accident. Instead, you need one or more of your treating medical doctors to testify as to what the injuries were, the treatment needed and often the necessity and cost of the treatment. Anyone who has been involved in an accident and tried to get medical care afterward may have found some doctors do not want to treat accident victims. Why? Because they do not want to be called as witnesses at trial.
What if one or both parties disagree with the treating medical providers conclusions? Then the next type of expert often used are non-treating medical professionals. For example, a qualified orthopedic surgeon may be retained to review the injured party’s medical history, treatment, etc. and issue an opinion as to whether the injuries were caused by the accident or the result of something else, such as normal aging or another prior injury. Normally, these witnesses never actually see the patient, but only rely on records, testimony, their experience and their education. However, if they have a well thought out and reasoned opinion, it can give a judge or jury a lot to think about in terms of potential injuries.
Let’s say our seriously injured driver from Car A is going to need some level of treatment for the remainder of her life, and will lose the ability to earn as much money as she could because of physical limitations. This situation often requires another growing area of expert testimony, which is the life care planner. A life care planner will gather information from the treating physicians, and coordinate with financial planners to determine future costs for treatment and losses of earnings. Life care planners can be very effective in explaining how future damages can be calculated. A person who is badly injured is not likely to stop hurting the minute trial is over – they often have life long injuries. Since you can only go to trial once, the life care planner gives the jury the information they need to potentially award a reasonable sum for future treatment.
The numbers created by the life care planner often invokes yet another type of expert, an economist. The economist is needed to calculate what future damages are worth in dollars at the time of trial. That may sound confusing (and it is), but if you need surgery in 10 years and it will cost $250,000.00 in 2034, the economist looks at the number and determines what a jury would need to award in today’s dollars to cover a $250,000.00 surgery in 10 years. Likewise, the economist can look at future lost wages or earnings and convert those numbers into today’s dollars.
As one can see, there are various experts that are common in personal injury cases. However, an expert witness can really be called in any type of case where an average person may not have the education or expertise to testify about certain specialized topics. In fact, experts are common in pretty much all types of cases, whether criminal or civil. That does not mean every case needs an expert, it is a decision that your attorney will often consult with the client about, as experts can be very expensive.
This article provides a brief summary about the important types of expert witnesses that may assist you in being successful in proving your case at trial. Showing up at trial with no experts can be a risk, especially if the other side has multiple expert witnesses. In short, having an expert witness(es) will often support you in achieving a positive outcome.