Peacock Tales • Winter 2011


Expert Witnesses: A Necessary Expense

By Douglas R. Nolin

You may feel that you have been wronged, and are considering filing a lawsuit. Or you may have been sued, and are preparing to defend your case. What you may not have considered is the importance of one individual whose effectiveness can be just as important, if not more important, than the quality of your attorney, the judge, or the jury. That individual is your expert witness.

Under Pennsylvania Law, if the subject of a lawsuit is beyond the ordinary knowledge of the jury, an expert may testify. Sometimes an expert is absolutely necessary. That expert may be needed to explain technical, scientific, or medical facts and procedures. The expert might be called to give detailed monetary calculations where economic issues are critical. Often, an expert is needed to show causation, in other words to show that a wrongful action taken by the defendant actually caused harm to the plaintiff.

For example, if the lawsuit involves a car accident at an intersection, an expert would not be necessary to tell the jury whether the stop light was red or green. All of us are presumed to understand the workings of a stop light, and the actions required if the light is red, yellow, or green. It would be up to the jury to decide what color the light was and whether one of the drivers acted improperly in the intersection. However, expert testimony would be needed to help the jury determine whether someone was injured as a result of that collision. This would require expert testimony probably of a physician. The plaintiff's physician might tell the jury that the accident caused the plaintiff some physical injury and pain, and would explain the link between the accident and the injury. The defendant's expert physician might testify that the injuries of which the plaintiff is complaining could not have happened from the accident or were preexisting.

Expert witnesses are needed in medical malpractice cases, construction disputes, product liability cases and many other types of litigation. Trials can be dominated by the number of witnesses who have some sort of expertise. They may have, and often do have, inconsistent positions. It is up to the jury to decide which expert is more believable and convincing.

It is first up to the judge to decide whether an expert is needed, and whether a witness is qualified to testify as an expert. However, it is up to the jury to decide whether the expert's testimony and opinion should carry any weight. Juries will take into consideration many things in making those decisions: the education and experience of the expert; his or her demeanor on the stand; the clarity with which he or she testifies; and even whether the expert looks like he or she is acting like too much of an advocate or a hired gun.

Experts can be quite expensive. They are entitled to be paid for their time in reviewing the facts of your case, and for their time in preparing for and testifying at trial. Often, the cost of an expert is one of the most significant expenses in litigation that you, the client, will bear, whether or not you win your trial. Those expenses may be a critical consideration in deciding whether and how to litigate.

Whether you are a plaintiff or a defendant, and because sometimes the expert is the key to winning or losing your case, the lawyers at Peacock Keller will work with you to focus on finding the right expert or experts and helping you to understand the significance of those experts for your case.


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