Asked about 1 year ago - New Rochelle, NYFlag
I have heard and read that an expert are usually hired for these types of cases? Why are they hired? Do they help prove notice? What can happen if an attorney fails to hire one in a case --when needed? Can a lawyer wait until the note of issue or right before a trial date to hire one or would this be too late in the case?
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Your attorney will have to do a risk/benefit analysis. There is cost associated with the expert, and if settlement is imminent it may not be necessary. The issue notice may be secondary to the issues of violation of building codes, recognized standards of safe inspection and maintenance, etc.
It does not always have to be done by note of issue- some Judges have their own rules, and usually notice of expert retention will depend on that, but usually no later than 30 days before trial. Ask to speak with your attorney to better understand your situation, and his or her thinking about the matter.
Bob Brenna Jr
Brenna Brenna and Boyce PLLC
Rochester, New York 14614
You can hire an expert and give notice after the Note of Issue is filed in State Court. You use an expert to explain to a jury issues of "science" that they may not ordinarily know. Experts can be used to prove constructive notice. For example, an expert can testify that a condition that has existed for a certain period of time violates a building code.
When dealing with a "premises liability" case, an expert will be typically needed where the issue is generally one of whether the construction or design of the portion of the premises where the accident happened was a proximate cause of the accident complained of; an easy example being whether a staircase had the proper number of handrails given the width of the staircase; the height of the risers of each step, etc. An expert, such as an engineer or architect would be needed to prove the violation of the applicable local or state building code. This is compared to a premises liablility case where the claim is that the injured party slipped on a foreign substance (ie- a banana peel). In a number of instances, the violation of a building colde provision may constitute constructive notice of the dangerous or defective condition on the part of the defendant-landowner/possessor. The disclosure of the expert and his/her expected testimony is controlled by the Civil Practice Laws & Rules, in NY, Seciton 3101(d), and while it can not be said that making such a disclosure after the note of issue is automatically too late, the later one waits to do so the greater risk the adversary will claim prejudice and you could face preclusion of your expert's testimony for late disclosure. This is most likely true if you wait until the "eve of trial" to make the disclosure, unless you can give a justifiable excuse for your lateness. Lastly, in some instances, the use or non-use of an expert may be considered a tactical or judgmental decision while in others it would constitute malpractice for not using one. Each case has to be analysed based upon its own set of facts and circumstances.
Jeffrey I. Schwimmer, Esq.
20 Vesey Street - Suite 1200
New YOrk, NY 10007
(800) 370 - 3010
Experts are often required, for example, to meet the burden or proof regarding a defective condition. In the first article linked below, it is pointed out that "slip and fall" cases are never the "slam-dunk" cases many people think they are. So, attorneys sometimes employ experts to meet the burden of prroof as to liability.
The second link below indicates why experts in general are required to meet a plaintiff's burden of proof in some cases.
These are general answers to general questions.
Experts are not required in each case and your own attorney who knows all of the facts and the applicable law is the only one who can determine whether an expert is required.
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