My last post discussed your investigative responsibilities as a lawyer. This blog entry talks about the use of experts to secure a meaningful settlement or verdict for your client.
C. Experts
Depending on the size of your case, the area of law involved and the complexity of issues, you may want to retain one or several experts. In medical malpractice cases, experts are required and you need to obtain one prior to filing suit who is expected to qualify and who is willing to testify that the standard of care was breached. N.C. GEN. STAT. § 1A-1, R. 9(j) (2001).[1] In medical cases, it is not enough to find a doctor who merely meets the technical qualifications imposed by the applicable rules and is willing to testify. The expert must be not only a skilled healthcare provider, with excellent credentials, but also a capable communicator, able to articulate his opinions and stand up under vigorous cross-examination. This is so regardless of the expert’s field.
1. 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).
2. Finding the Experts
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 represent plaintiffs and are a member of NCAJ, join the section or sections in your practice area(s). That will give you access to NCAJ’s section listserves. Listserves are large email loops to which all section members have access. Simply log in to the respective listserve, 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. Kevin J. Williams has had a lot of success locating experts simply by calling or e-mailing various experts out of the blue. Lastly, there are expert witness services you may contact. But be sure to use a reputable company that avoids employing hired guns.
3. 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 provides 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 records pertaining to the alleged negligence of the defendants, 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.
Experts can be peculiar creatures, especially in the medical context, 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 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 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. Also, call on your experts to help prepare for taking the depositions of your opponent’s experts. Ask your expert, “if you were in my shoes, what would you want to ask their expert in deposition?” Or, “what do I need to watch for in this deposition?”
Prior to your expert’s deposition, make sure you prepare them. Focus on weak points in the case and how they should be approached. In terms of the location for the deposition, make sure you select a location convenient for your expert. Convenience is key for experts. After the deposition, see to it that your expert is paid promptly. Follow similar principles for trial. In addition to the normal preparation of your experts, offer to book their flights if they are from out of town. Arrange for a car to pick them up and return them to the airport. Make their hotel reservations. A happy expert often makes for a better expert. Better experts help obtain better results. Further, if an expert performs well for you in one case and you develop a good relationship, you may be able to call on them for help in future cases.
[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).
