I. INTRODUCTION
One of the greatest challenges facing the attorney is figuring out how to effectively use expert witnesses to help maximize damages in catastrophic injury cases. It is naive to think you may simply retain an expert or two, and allow them to render some opinions in the hopes they will make your case for you. It is the attorney’s job to make the case. In doing so, it is incumbent on you to figure out which expert(s) to use, and how to use them, in order to make that case. The focus of this paper is not only to reinforce methods many of you already employ regarding the use of expert witnesses but to suggest additional ways in which you may maximize the effectiveness of those experts.
A. PRE-SUIT INVESTIGATION AND RETENTION OF EXPERTS
The most important time spent on any case is the time spent in the selection process. The most important question to ask yourself during the intake of a case is whether this is a case you are prepared to investigate, file, fund, discover, try and, if necessary, pursue through appeal. In many catastrophic injury cases, it is necessary to retain an expert to help you determine whether the claim is a viable one. A medical malpractice case can not even be filed unless a reasonably qualified expert has reviewed the case and is willing to testify as to a breach in the standard of care. N.C. GEN. STAT. § 1A-1, R. 9(j) (2001).[1] If you are looking at a trucking case, an expert can help you determine if contributory negligence is too big a hurdle to overcome. Regardless of the type of case, however, it is important to retain the appropriate expert early on to help you understand the strengths and weaknesses of your potential case. Relatively minor expert fees on the front end can save you and your potential client significant expenses on the back end if you learn early on that you’ve got a case that is extremely difficult, if not impossible, to win.
Evaluating Need for Experts
As the size and/or complexity of a case increases, generally so does the need for an expert. Certainly, if an expert can provide “scientific, technical or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue,” then you ought to consider retaining such an expert. See N.C. GEN. STAT. § 8C-1, Rule 702 (1995). Thus, when it comes to catastrophic injury cases, you will almost certainly need an expert and perhaps several.
Finding the Experts
It is not enough to find an expert who merely meets the technical qualifications imposed by the applicable rules and is willing to testify. The expert must be not only skilled in their field, with excellent credentials, but also a capable communicator, able to articulate his or her opinions and stand up under vigorous cross-examination.
Indeed, one of the more difficult aspects of developing a case is locating good experts. This is particularly true for medical malpractice plaintiffs where there is great pressure exerted on physicians not to testify against their own brethren. The more specialized the field (i.e. neurosurgery, orthopedic surgery), the more difficult it is to locate an expert. The search for an expert often requires diligence, thorough investigation and sometimes a little creativity.
Regardless of the field and whenever possible, local or regional experts should be selected. Even if you are able to obtain a national expert, renowned by his colleagues, it is still a good idea to have a local expert with whom the jury can identify. If the local expert’s testimony is consistent with that of the national expert, you will have a one-two punch that may be difficult for the defense to withstand.
But how do you find these experts? First, ask other members of your firm. Perhaps someone else had a similar case in the past where they enjoyed some success with an expert. Second, if you are a member of NCAJ, join the section or sections in your practice area(s). That will give you access to NCAJ’s section LISTSERVS. LISTSERVS are large email loops to which all section members have access. Simply log in to the respective LISTSERV, email a query and you will often get a response from your fellow colleagues within a day. Third, review publications promulgated by various settlement and verdict reporters. There are many such publications to which you may subscribe and they are useful not just for highlighting the value of certain types of cases, but they often include experts used by the litigants.
Fourth, start cold-calling. Our firm has had a lot of success locating experts simply by calling or e-mailing various experts out of the blue. For instance, we had a case in which a client went totally blind as a result of medical malpractice. To find experts, we logged on to websites for the various medical schools around the state. After narrowing the search to the respective departments of ophthalmology, we were provided with lists of ophthalmologists (and other eye specialists) and their contact information. Many cold-calls or “cold-emails” later, we had developed a strong stable of experts.
The last suggestion is to research the literature in the field at issue. If there is an author who has published significantly and persuasively in that field, you may try contacting that expert. We have a case in which “guidelines” have been developed which govern the medical care at issue. The guidelines listed several contributors. We called the very first name listed, a physician who served as Chair of these guidelines. He agreed to review the case and is now our star witness.
If all else fails, consider consulting an expert witness service. But take care to deal only with a reputable company out of the concern your expert will be painted as a hired gun.
Investigation of the Expert
Now that you have found a willing expert who appears to be qualified, you must still do your due diligence on that expert. It is not enough to ask your expert a few questions to get an idea of whether or not they may be appropriate for a case. Attorneys have an obligation to further investigate their experts’ backgrounds prior to retaining their services. Failure to do so at the outset can scuttle a case later on after hundreds of hours and thousands of dollars have been expended.
For instance, you may have an accident reconstructionist you routinely rely upon in trucking cases. However, that same expert may not be appropriate to work on a motorcycle or aviation case. It is important to investigate your expert’s background with respect to the particular case you are investigating. Start simply by asking your expert about their background in a particular field. There is nothing disrespectful about having a candid conversation with your expert about whether they feel comfortable in a particular area.
Medical malpractice cases have additional hurdles. Standard of care experts must also have spent the majority of their professional time in the active clinical practice of medicine and/or teaching in the same or similar specialty as the defendant, in the year preceding the alleged negligence. It is crucial that you probe your expert to make sure they qualify. It is not unheard of for a plaintiff’s attorney to get into a deposition with their expert only to find out under vigorous examination that the expert actually spent 55% of their professional time performing administrative duties, researching and writing, and engaged in other outside activities. That expert may be disqualified and the case dismissed.
With the advent of the internet, attorneys are able to perform much more investigative work from the comfort of their own office. If your potential expert maintains a website, review that website to see how that expert represents themself to the public. It is also I–important to make sure there is no information on their site that could be used to impeach them at deposition or trial. If the expert is a physician, consult the North Carolina Medical Board’s website to see if he or she has a public file, has been the subject of malpractice settlements, etc. Look your experts up on Google or other browsers to see if there are any negative (or positive) articles on them.
Handling the Experts
It is extremely helpful to conduct personal meetings with the experts early in the investigation of the case and before counsel is committed to employment. It is important that counsel and the expert establish rapport and be able to communicate throughout the case. Once a personal meeting has established a bond, follow-up telephone conversations to discuss the case as it develops will be more productive and preparation of the expert proceeds much more smoothly.
In medical cases, when experts are selected, counsel should first obtain from them an affidavit that avers that the expert meets the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure, that the expert has reviewed the case and all of the applicable medical records, and is willing to testify to a breach of the applicable standard of care. This expert, even if selected to prove a breach in the standard of care, should also fully understand causation issues involved in the case and be prepared to advocate those issues, even if other experts will be called specifically to deal with causation. If they are not able to render causation opinions, it is still essential that they understand the opinions of your causation experts so that their opinions mesh and complement one another.
Experts can be peculiar creatures and it is important to handle them with care. In medical cases, initial impressions are even more important. When contacting an expert, make sure you are familiar with the medicine and what happened. Be able to provide a succinct summary of the care rendered. If you can secure an agreement by the expert to review a case, make sure you request their fee schedule so there are no misunderstandings about payment. When you send records or other file materials to your expert, be sure to organize them in a coherent format. Experts are put off when they open the mail only to find a large stack of medical records, photographs or other documents in no discernible order.
Inquire as to when you might expect a response. If the expert does not respond, you may issue a gentle reminder. If you obtain a favorable opinion, be sure to provide them with any other information they may need for their deposition which will be taken at some point in the case. Take care not to let too much time pass between contacts with your expert. Even if the case has not made much progress, call your expert from time to time to discuss any new developments, as well as when they might expect to be deposed.
[1] Medical malpractice experts must also satisfy other requirements. For example, N.C.R.Evid. 702 requires that the expert must specialize in the same specialty as the party against whom or on whose behalf the testimony is offered. N.C. GEN. STAT. § 8C-1, Rule 702 (1995). Further, the expert must have been engaged in active clinical practice in the specialty at issue or the instruction of students in an accredited health professional school or accredited residency or clinical research program in said specialty. See N.C. GEN. STAT. § 8C-1, Rule 702 (1995).
