In a recent blog, I wrote about the importance of lay witnesses and how to spot a good one. If you haven’t read that blog before, you can check it out right here. In this entry, I’d like to introduce the topic of expert witnesses.
What is an expert witness?
Expert witnesses are, by and large, people selected by your lawyer to help prove a particular part of your case. They’re chosen based on their skills, expertise, and training. They are by definition, experts in a particular subject matter. Interestingly, an expert witness can be qualified to testify about your case without having even met or spoken with you.
Types of expert witnesses
There are many types of witnesses, depending on the subject of the testimony. For example, there are:
- lay witnesses or fact witnesses. These are usually people that you know.
- damages witness. These might be friends, family, or coworkers.
- liability witness. These might be someone who was in the car with you when the crash happened or it could be a bystander.
On the whole, these are people who usually aren’t known to your lawyer until and unless you point them out. Expert witnesses are a different animal altogether.
Importance of expert witnesses
Nowadays, it’s almost impossible to succeed in a personal injury case without at least one expert. No matter how serious the injuries or how bad the crash was, most insurance companies aren’t going to simply roll over and pay out the policy unless your team knows how to appropriately deploy expert witnesses.
So while the selection and use of experts is usually something that’s left up to your lawyer, here are a few things that you might want to know about the process.
Cost and timing of expert witnesses
Sometimes clients will ask me, is it really necessary to spend so much money on expert witnesses? Can’t we wait and see if the insurance company will pay without having to spend all this money upfront?
As you know if you’ve been reading this blog, the cost of expert witnesses is ultimately borne by you, the injured person. In most cases, your retainer agreement will provide that your lawyer will pay for these things upfront. And when the case settles or resolves by way of a jury verdict, you pay back out of the settlement.
But looking at experts as a cost, instead of an investment, is a mistake.
As soon as an injury lawyer accepts a case for representation, we are analyzing it from start to finish looking at the problem areas and which experts we will need to prove those crucial elements of your case. Hiring expert witnesses early serves a few functions.
Benefits of expert witnesses
One benefit is that expert witnesses can help us investigate and identify the information needed in order to prove the case. Experts can be crucial for helping us figure out what documents we need and what testimony to take in order to prove your case. And in order to do this, we must pay upfront for the expert’s time and skill.
There’s simply no way around this.
Another reason experts are so crucial early on, is that they let the defense know we’re taking the case seriously by presenting expert reports. Additionally, the skill with which we select documents and take testimony demonstrates to the defense that we’re taking the case seriously.
And the settlement offers we get reflect that.
Downside of hiring an expert witness too late
If we waited to hire an expert witness until the case was trial-ready, we may find that there aren’t experts who back our theory of the case.
We may wind up having invested months or years of time and many thousands of dollars only to have no case to show for it.
The cost of expert witnesses
The next question I often hear from my clients is, “So how much do experts really cost?” With doctors, it depends on the type of doctor and the credentials that they bring to the case. It also depends on the severity of your injuries and how extensive your medical record is.
Medical experts can run anywhere from $1,000 to $10,000 in a car crash case that involves orthopedic injuries like broken bones or ligament damage. But if you’re suffering from a spinal injury or a brain injury, and a neurologist or a neurosurgeon is needed, these can quickly run up to $20,000 or $30,000 and sometimes more. Other experts may be required as well. A typical car crash case can cost $15,000 to $20,000 to properly prepare for trial.
What if I don’t have enough money to pay for expert witnesses
This amount can be concerning, particularly if there’s only an insurance policy of 25 or $50,000. How is it, you may ask yourself, can we justify spending $20,000 on experts where after attorney’s fees and expert costs there may be nothing left for you, the injured person?
There’s simply no one size fits all answer to that question.
Each case must be looked at specifically, based on all of the individual factors and an ongoing conversation between lawyer and client as to what’s in your best interests and how to best work up the case to maximize the likelihood of recovery for you.
It’s important for you as the client to ask questions of your lawyer and initiate those conversations about expert witnesses and costs if your lawyer isn’t already talking to you about them.
Different types of expert witnesses for accident claims
So what other kinds of experts might you see besides a medical expert?
In car crash cases, we don’t often see expert witnesses when it comes to proving fault.
If there’s a question as to who caused the collision we may hire an accident reconstructionist.
If after the crash, the airbags didn’t deploy, the car rolled over, or the glass didn’t shatter as it was supposed to, we may need an automotive engineer. If drunk driving was a factor, we may need a toxicologist to explain the effects of alcohol on operating a motor vehicle.
But the truth is, the most common and most important expert in any personal injury case is going to be the medical expert.
Medical experts as expert witnesses
The medical expert is usually a medical doctor. He or she will explain and summarize the medical records, discuss diagnoses, and the reasonableness of care that’s been provided. The expert doctor will talk about the connection or causation, between the car crash and your injuries. She or he will talk about future care needs and what your prognosis for recovery is.
Often, when future medical care is an issue, we’ll rely on someone called a life care planner. A life care planner will look at the medical care that the doctors say is required and then tally up the costs of each individual element of care. An economist will then take that life care plan, adjust it for inflation and tell us how much it will cost either in settlement or in the amount of a verdict to pay for that life care plan, over the course of the injured person’s life.
Your doctors as expert witnesses for your accident claim
Before I finish up, I want to discuss a unique expert witness, and that’s the treating physician. A treating doctor can be your primary care doctor, your orthopedist, or physical therapist.
These types of medical providers are usually given a great deal of credibility both by defense lawyers and jurors, because their primary job is to help people get well. The best of all of these is your primary care provider.
Ideally, he or she can come to court and contextualize your injuries and tell us what your life was like before and after the crash. A good relationship with your primary care provider can be a real asset to a personal injury claim. So be sure to discuss your relationships with your primary care and other treating providers with your lawyer early in your case.
Summary “What is an expert witness?”
Your takeaways from today’s blog are:
Number 1: expert witnesses are usually selected and hired by your lawyer, although ultimately, you pay for them.
Number 2: there are expert witnesses for each element relating to your personal injury case. Hiring experts early is important for developing your case and you should expect that the cost will go up depending on the severity of your injuries or how many contested legal issues there are in the case.
Number 3: let your lawyers know early if you have a supportive relationship with a primary care provider or other treating doctor.