Where to find the best ones, vetting them, promoting your theme, what to teach amateurs, and more
Excerpted from Personal Injury Handbook
- Avoid “advertisers.” We have found that the worst experts are the ones who advertise. They are promoters; they spread themselves too thin. They claim to be experts on everything under the sun and they usually are much more interested in the profits they can make on the case then the contribution they can make to a winning effort.
- The best experts are obtained by combing the published jury sheets on past cases. Look for experts used by top notch lawyers who have had good results. Consulting with other lawyers tends to be anecdotal and often unreliable, but it is a good place to start as long as the published results are used as the final determination.
- There are true experts in every field who have a narrow focus to their work and are recognized by their peers as being the last word. Usually these experts are found in university settings. They may have never testified before, but are influenced by the fees they can command by going through this unfamiliar “torture.” These are the ultimate experts. It is exciting to have an expert who has never testified before and be in a position to talk about the professional experts on the other side.
- It is a lot more work to educate experts who have never testified on the fine points of testifying, how to avoid traps in questioning, etc., but it is worth it. Juries love them. They must understand that testifying is far different than an academic discussion. There are few certainties in science, but in court all experts must be positive and certain. You can bet that the defense experts will not waiver. It is a tough sell to convince an “amateur” expert that he can prove something is true merely by saying it. His best opinion for courtroom purposes is absolute proof.
- Don’t be afraid to interview more than one expert. In most jurisdictions, consultants are confidential until they have been officially named to be experts in the case.
- Talk to lawyers who have used the expert and find out if his or her opinions get weaker after a long period of billing on the case.
- Don’t be afraid to promote the themes that you know as a trial lawyer will help win the case. Experts are not trial lawyers and often do not understand that there is a vast difference between pure science and ways of presenting a case that appeal to a jury. This is not a license to distort the expert’s views, but it is important to direct him or her to approaches that will be simple and that the jury will believe.
- Some lawyers hire an expert to tell them if they have a case. This is backwards. The lawyer knows the law and he or she must direct the expert in ways that do not violate his or her opinions, but at the same time dovetail the science into a winnable combination.
- It is perfectly okay to hire an expert who always testifies for plaintiffs. The defense hires experts who always testify for the defense. It is very hard to ride both rails on a railroad track without being run over by the train.
- In the long run, jurors are very good at using their own common sense. In highly complex medical malpractice or drug cases, the experts on both sides tend to cancel themselves out. Nonetheless, the jury will be educated and will then be amenable to the side that sounds right.
§1:61 Tips on the Art of Expert Testimony
- The most common escape for “professional” experts is the answer “not necessarily.” An “amateur” expert should be encouraged to use this approach, but not abuse it. He or she can use it as a convenient method of giving a responsive answer, but at the same time provide him or her with a leisurely and extended avenue to explain the exceptions to the rule. Sometimes, the exceptions will emasculate the general rule.
- “Amateurs” should be encouraged to be positive and understand that as a true expert they are the last word.
- “Amateurs” should be told that it is perfectly natural for them to be paid for their time. Professional experts often try to hide their true fees by billing by the hour, throwing in the hours spent by assistants and administrative personnel, etc. A bill broken down by the hour that takes the expert away from other activities is something the jury will understand and appreciate.
- All written material produced by an expert in his or her lifetime that has any relevance at all to the subject matter should be carefully reviewed and discussed with the expert for any apparent inconsistencies.
Larry Booth concentrates on high-profile personal injury and death cases in a wide variety of areas including auto defects, construction accidents, products liability, drugs, malpractice, and governmental liability. His firm has produced over 75 verdicts and settlements exceeding $1,000,000. In 1974, Larry Booth was elected to the Inner Circle of Advocates, which is a national organization limited to the top 100 trial lawyers in the United States. In 1978, he was the President of the Los Angeles Trial Lawyers Association.
Roger Booth. In a legal career that began in 1991, Roger Booth has handled many large, complex cases, representing both plaintiffs and defendants. Since 1997, he has focused on representing people who have suffered catastrophic injuries or the loss of a loved one. Roger Booth has handled more than 20 cases that have resulted in verdicts or settlement in excess of $1,000,000. In 2009 and 2010, he was named a “Super Lawyer,” an honor limited to the top 5 percent of attorneys in Southern California.
Larry and Roger Booth are the authors of Personal Injury Handbook, from which this article is excerpted.
By Leonard Bucklin
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