An expert witness is someone who possesses significant knowledge about a particular field. The expert offers their opinion concerning a disputed or complicated matter for which someone has filed a legal claim.
Personal injury attorneys use expert witnesses in court, during settlement negotiations, or as private consultants.
Expert Witnesses vs. Lay Witnesses
An expert witness may offer an opinion on almost any matter within their field of expertise and must be qualified.
A lay witness (or fact witness) may testify concerning matters they have personally experienced. They may offer their testimony only on these firsthand matters.
Two Types of Expert Witnesses: Testifying Witnesses vs. Consulting Witnesses
Lawyers use two main types of expert witnesses: testifying witnesses and consulting witnesses. Below is a description of both types.
Testifying witnesses testify at trials and subject themselves to cross-examination by the opposing attorney. They may answer questions under oath at a deposition conducted during the pretrial discovery process. A testifying expert witness might also answer written interrogatories, which are another part of the pretrial discovery process.
Consulting witnesses do not testify or participate in the pretrial discovery process. In fact, the opposing party might not even know that your lawyer has hired a consulting witness. The job of the consulting witness is to educate your lawyer concerning the subject matter of a complex claim so that your lawyer can handle your case better.
Qualifications of an Expert Witness
A judge will decide whether a particular expert witness is qualified to testify.
The following are some factors that a judge (and your lawyer) might consider:
- Academic qualifications in the relevant field of expertise
- Professional experience
- Publications in academic journals (both quality and quantity)
- Any professional awards they may have received
- Name recognition, both in their field of expertise and among the general public
- Experience testifying: Lawyers prefer expert witnesses with extensive experience testifying in court so that the opposing lawyer will not rattle them
The relative weight of each of these factors varies from field to field and from case to case. Some professions require advanced degrees, for example, while others do not.
Typical Ways That Personal Injury Lawyers Use Expert Witnesses
The following is a small sample of how lawyers use expert witnesses to resolve personal injury cases:
- Medical malpractice claims: Should the obstetrician have performed a C-section under the circumstances? What was the cardiologist’s duty of care toward a patient who complained of chest pains?
- Motor vehicle accident claims: If multiple parties or a commercial vehicle is involved, an attorney may enlist the help of an accident reconstructionist or truck accident expert to resolve complicated issues.
- Product liability claims: To win a product liability claim, an injured plaintiff must prove that the product that injured them was defective and unreasonably dangerous. An expert may be able to help establish liability.
- Compensation demands that include estimated future medical expenses: A medical expert or financial expert witness might be able to help calculate a plaintiff’s cumulative future medical costs arising from a long-term disability.
- Compensation demands that include estimated future lost earnings: A long-term disability might prevent a plaintiff from working again or force the plaintiff to accept lower-paying work. A financial expert can calculate the total cost of a plaintiff’s diminished earning capacity over the remainder of their professional lifetime.
Professional Expert Witnesses
Some expert witnesses still practice in their field. Others have retired and serve as professional, full-time expert witnesses. Either way, the witness will demand payment for their testimony, research, and consulting services.
The opposing lawyer might make a subtle attempt to damage the credibility of an expert witness by ensuring that the jury knows the lawyer is paying the witness to testify. This strategy rarely works because the use of expert witnesses is routine.
Expert Witness Agencies
You can use an agency to help you find an expert witness. Your best bet is to hire an experienced personal injury attorney who has cultivated strong working relationships with the most successful expert witnesses.
Who Pays Expert Witness Fees?
Typically, your lawyer will pay expert witness fees in advance. If you win your claim, the lawyer will deduct these fees from the amount the defendant pays you.
An Experienced Personal Injury Lawyer Has Access to Leading Industry Expert Witnesses For Complex Issues
You need to speak to a lawyer if your case is complex enough to consider using an expert witness. Since almost all personal injury lawyers offer free initial consultations, there is no financial risk in consulting an experienced personal injury attorney to determine whether your case is worth pursuing.