Expert Advice When You Need It Most

Expert Witnesses: Finding the Right One, Affordability, and Strategies

Written by: J.D. Smith

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Posted almost 3 years ago. Applies to Washington, 1 helpful vote, 0 comments

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Should my case have an expert?

A case may need an expert for any one of many reasons. A particularly complex or technical case will require an expert. Similarly, in certain types of cases the court may require an expert because of the nature of the claims or defenses. In addition, an expert may be required to rebut an expert hired by the opposing side (this is particularly common when dealing with insurance companies). There is an endless list of possible reasons why an expert might be necessary. However, the primary consideration when determining whether a case should have an expert is economics. An attorney needs to compare the damages to the estimated costs and benefits of investing in an expert, and determine if it would be cost effective to do so. In many cases the damages are so small that retaining an expert would consume most of any award, making it not cost effective to do so. In other cases the damages and/or the potential increase in award are such that retaining an expert becomes almost mandatory.

Where to find Experts

If you have determined that your case needs an expert and that it is economically feasible to retain one, then you need to get to work on finding an expert for your case. Generally, it is best to start by asking colleagues for recommendations. You might also use an internet search to locate potential experts. There are many online databases of expert witnesses, such as the two listed below, that can provide you with valuable information. Regardless of what recommendation or information you receive about an expert, it is ultimately your responsibility to make certain that the expert is appropriate for your case.

Which Expert to Choose

Which expert you choose will ultimately depend on the issues in your case. The expert you retain must have the training and experience required to give relevant and persuasive testimony on the issue you want them to address. For example, a police officer can be an excellent expert witness who can testify to the scene and sobriety. However, an officer is not necessarily the best or even an appropriate expert witness to address accident reconstruction or the cause of injuries. Economics is also a factor in selecting which expert to use. Some experts are significantly more expensive than others, and a higher price tag does not necessarily make a better witness.

Admissibility

Whichever expert you choose, you need to be certain that the testimony they have to offer would actually be admissible in court. Conduct research into an expert’s background and qualifications before you retain them. Make certain that the issue you want them to address is within the scope of their expertise under ER 702. Ask the expert if he or she has ever been disqualified from testifying in a case, and, if so, why. You should also meet with your potential expert and figure out what methods they intend to use in analyzing the issue and developing their opinion. Not all scientific methods produce admissible expert testimony. In Washington state courts, the Frye rule is controlling. Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923). The Frye rule states that if an expert’s opinion is based on a scientific theory or method, the theory or method should be one that is generally accepted in the community. 5D Wash. Prac., Handbook Wash. Evid. ER 702 (2008-09 ed.).

Credibility and Availability

Every expert presents themselves differently. Their job is to educate you and opposing counsel during negotiations, and the jury at trial. Therefore, an expert needs to have both technical knowledge and the communication skills necessary to effectively educate people of widely varying backgrounds. A face to face meeting with any potential expert is necessary to determine if they can persuasively explain their opinions in a manner that anyone can understand. An expert who is not credible or cannot explain their opinions is not very useful. An often overlooked issue is the availability of the expert. It is often assumed that because experts are paid they will be both reliable and available for court. Unfortunately that is not always the case. Experts are often very prominent in their field and have busy schedules, which can lead them to be unreliable. The expert you choose needs to be both reliable and available for the court dates that you need them.

Fact Expert or Occurrence Expert

A person who would otherwise qualify as an expert witness, but who was not retained in anticipation of litigation and instead will be offering testimony on the basis of personal knowledge is often termed a fact expert or an occurrence expert. They are also at times, called a non 26(b) (4) expert. Treating physicians and project engineers are common examples. For purposes of Court Rule (CR) 26, the test for whether a witness is an expert or a fact witness is whether the facts or opinion possessed by the expert were obtained for the specific purpose of preparing for litigation. The mere designation by a party, alone, is not controlling. Peters v. Ballard, 58 Wn.App 921 (1990).

Strategies for Dealing with Experts

In dealing with any expert communication is critical. The methods of communication, clarity of expectations, and acceptable costs must all be carefully considered. All written communications with an expert are discoverable. Therefore, careful consideration is required when exchanging correspondence with an expert. You do not want your email exchanges with the expert to become a prominent exhibit at trial. For this reason, many experienced attorneys prefer to keep written communications with experts to a minimum. A letter providing the expert with materials they need to form their opinion may only read: “Enclosed, please find the following….” Detailed conversations with your expert should be done in person or on the phone. At the same time the clarity of expectations must be maintained. To get the most out of your expert you need to clearly define what their task is.

Conclusion

Determining if an expert if appropriate for your case and retaining the right one is a deceptively complex process that requires careful consideration of many factors. Planning ahead and conducting thorough research reduces the risk of unnecessary costs, allows you to get the most out of your expert, and maximizes the award to your client.