Like a game of chess, preparing a case for trial involves strategy. Trial litigation can be costly, time-consuming, and unpredictable in the hands of a jury. One of the most powerful strategic tools for trial is the use of expert witnesses (governed by the Calif. Code of Civil Procedure [CCP] §2034). A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates (Evidence Code §720). Expert witnesses are used primarily in jury trials to prove the amount of damages a plaintiff can recover for his injuries. Securing the aid of a qualified expert in negotiations for settlement can also avoid costly litigation. Therefore, choosing qualified witnesses are crucial to a suitable outcome in your client’s favor.
In a civil jury trial, the jury determines the amount of damages to award a plaintiff. In a personal injury case, for example, general damages stem from physical injuries and mental anguish. Special damages are out-of-pocket expenses that can be determined by adding together all the plaintiff's quantifiable financial losses, such as past and future medical expenses. The difficulty for the jury lies in assigning an exact dollar amount to a subjective injury. The damage award can range from minimal to substantial depending on the severity of an injury, the skill of the attorneys, and the sensitivities of the jury. Given this subjectivity, it is crucial to choose qualified expert witnesses.
Some important considerations when choosing an expert include the expert’s capacity to organize ideas, express them readily, and interpret them are significant stepping-stones to success. The value and strength or weakness of an expert opinion is in proportion to the character of the expert, his learning, his experience with and study of the matter involved, and his freedom from bias against plaintiff or defendant (e.g., watch “The Verdict” starring Paul Newman relating to the importance of expert witnesses at trial). Moreover, there are other variables to be considered in determining whether or not to use a particular expert as a witness. Among these are availability, cost of services, experience, and reputation. Since his testimony may be central to the establishment of facts, his integrity and actual ability (as distinguished from his technical knowledge) may be of great consequence.
The most commonly sought-after expert today is the medical expert. A great percentage of judgments obtained in personal injury litigation depend purely on medical testimony rather than on legal arguments. One must assess the type of doctor necessary, success rates in previous cases as a witness, and hourly fees.
The key is to help a jury understand and explain how these injuries specifically relate to the plaintiff’s general damages of pain and suffering and special damages of past and future medical expenses. For example, the expert witness, “Dr. Neurologist,” would explain the MRI, CT and various scans and medical reports to the court and members of the jury to prove the existence of a skull fracture, brain injury and its severity.
In cases involving traumatic injury, a psychologist or neuropsychologist would be an ideal expert witness to assess damages. The expert could explain risk factors associated with brain injury, including memory loss, mood, behavior and deterioration in performance in school and work. Moreover, a psychologist could explain the effects the traumatic injury causing significant discomfort psychologically and emotionally. Psychologist expert witnesses analyze how their patients became extremely nervous, agitated and emotionally upset due to the physical pain, physical disfigurement, and psychological trauma as a result of their injuries. This testimony would aid the jury in determining general damages for pain and suffering and mental anguish. A psychologist would also help the jury and court in their determination of special damages for future medical expenses should the plaintiff require physical therapy or psychological counseling in the future. Special damages are derived from the personality disorders and deteriorated academic performance that necessitates ongoing psychological counseling caused by the injury.
The weight given to the expert's opinion may depend on how impressive his background and experience. The good expert witness must understand the natural laws relating to his field and be capable of applying common sense to their interpretation and application. Generally, the more formal education and practical experience a person has had, the better he will be as an expert witness. A person of extensive education and experience may greatly impress a juror and will eradicate any idea that the opinion of the expert will be biased.
The fact that an expert has written books or has had articles published may be an important factor in his selection. The reputation of the school from which the expert received his academic degrees may also be significant. In addition to education and experience, a person's reputation among other experts in the same field is important. Even more significant may be his reputation among lay people— a person not well thought of by his peers may be very highly esteemed by the general public.
In addition to background and experience, there are many personal factors that should be considered. Thus, an expert’s appearance and general demeanor, age, personality, honesty, intelligence, and speaking ability should be weighed. Often, it is the personality rather than the testimony of the expert that the jury remembers. If a jury has the impression that an expert is being patronizing or snide, they may completely disregard his opinion. Similarly, the selection of an overly shy person as an expert witness should be avoided, as the jury may not credit his authority.
Furthermore, the value of an expert depends upon how thoroughly he can demonstrate what he knows to the jury. He or she should be chosen with a view to how he may impress the jury in matters of speech and tone of voice. He should be able to command the attention of the court and the jury, and he should express himself in language that the average juror can easily comprehend. Generally, he should have the ability to answer briefly and to the point without volunteering excessive information. If the case is to be tried before a judge alone, the expert need not be required to express himself in such simple language as would be required before a jury; most judges have considerable experience in hearing technical aspects of cases.
Ultimately, the final determination of experts will depend on the client’s budget and their expectations of the settlement or jury award.
Percipient Witnesses Distinguished
Percipient witnesses. It is important to distinguish between a percipient witness, i.e., a witness who is asked to recount something that he or she perceived, and an expert witness, i.e., a witness who is retained to express an opinion in the case. Percipient witnesses may need to be disclosed as part of ordinary pretrial procedures, but they need not be disclosed as part of the CCP §§2034.010-2034.730 procedures [Ref. OnLaw].
Expert percipient witnesses. Percipient witnesses may also include "expert" percipient witnesses, such as the police officer who investigates or reconstructs a traffic accident that results in a civil lawsuit, the industrial hygienist employed by an industrial accident victim's employer, and the regular outside accountant for a company that is making a claim for economic loss. An expert percipient witness's testimony may cross over from strict observation to opinion, as long as that opinion was not formed in anticipation of litigation or in preparation for trial.
A treating physician, for example, typically acquires personal knowledge of relevant facts independently of the litigation. Because the physician is neither a party nor an employee of a party, nor "retained" to form an opinion in the case, he or she is not an expert as defined in CCP §2034.210(b), but can be a percipient witness under CCP §2034.210(a) (i.e., a person whose "testimony in the form of an expert opinion any party expects to offer in evidence at the trial"). See Schreiber v Estate of Kiser (1999) 22 C4th 31, 91 CR2d 293 (treating physician's testimony is not limited to personal observations but may include both fact and opinion testimony on diagnosis, prognosis, causation, and standard of care). Counsel intending to use a treating physician as an expert is not required to prepare an expert declaration under CCP §2034.260(c), but must specifically list the treating physician by name and address on the designation of experts. Kalaba v Gray (2002) 95 CA4th 1416, 116 CR2d 570 (treating physicians designated by plaintiff as "all past or present examining and/or treating physicians" did not comply with letter or spirit of former CCP §2034 (now §§2034.010-2034.730) and such experts were precluded from testifying at trial).