Archives for May 2015

Selecting a Legal Expert Witness

Hiring a legal expert witness becomes necessary when you are retained for a case involving legal malpractice. The expertise of this witness is required to show where legal malpractice did or did not occur in your client’s case.

Selecting the proper legal expert witness for your client’s case can be quite the challenge. As all attorneys know, you must begin preparing your case with the end in mind. As you interview potential legal expert witnesses, consider how each one would testify in front of a judge and jury. Is the witness easy to understand? Is the witness engaging and interesting? Does the witness speak clearly, or does the witness have a distracting habit, such as foot tapping?

Additionally, ask each witness for the percentage of cases in which their testimony or expert reports were used to prevail. Many legal expert witnesses have testified in trial, but understanding how often the witness’ testimony has been persuasive to a judge and jury is more beneficial as you evaluate witnesses for your case.

Your legal expert witness should also be well versed in various aspects of legal malpractice cases. For example, say that your client’s case stems from a dispute over legal fees. If your expert only seems familiar with this aspect of legal malpractice cases, opposing counsel will use this fact to discredit your witness in court. A legal expert witness with experience in multiple types of malpractice cases will offer a wealth of knowledge to your case.

Finally, although it is tempting to select a witness who has primarily testified for the plaintiff or the defendant, do not dismiss legal expert witnesses who have testified for the “other side.” These witnesses will be able to offer you insight into opposing counsel’s position, which will significantly strengthen your case and your arguments.

Which Cases Require Expert Witnesses?

In some cases, such as medical malpractice cases, an expert witness’ testimony or report is required before a lawsuit may even be filed with the courts. In other cases, however, it is not clear when hiring an expert witness would be advantageous for your client’s case. Without an expert witness, a jury may not fully grasp the facts of the case. With too many expert witnesses, you risk the jury perceiving your case as one that is too weak to stand on its own. As an attorney, how do you balance these factors?

When the issues in your client’s case are especially complex, expert witness testimony will become essential. For example, in construction law cases that involve complicated theories of physics and engineering, an expert witness will be able to break these concepts down for the jury—and the judge. For simpler cases, for example, those involving a “fender bender,” expert witness testimony is likely not necessary.

If your client’s case involves a significant amount of damages, you will need to hire an expert witness. Expert witnesses are especially beneficial when the jury must decide an amount of damages that should be awarded to the plaintiff, should the plaintiff prevail. In cases involving future damages, or pain and suffering, in which there are no concrete numbers to draw an award from, an expert witness will assist the jury with deciding how to calculate such a number.

Essentially, if the success of your client’s case depends on theories or principles that would not be automatically assumed by a judge or jury, hiring an expert to explain these important concepts in the courtroom will be necessary. Your client may not be happy with the expenses an expert necessitates, but you must explain the value of the expert’s testimony for your client’s case.

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