Most personal injury claims do not require the use of an expert witness. Nevertheless, the success of some claims might hinge on expert testimony or analysis.
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The Professionalization of the Expert Witness Industry
Some expert witnesses serve on an occasional basis while remaining active in their chosen field. Professional expert witnesses, by contrast, no longer practice the profession in which they gained their expertise. Instead, they serve as expert witnesses full-time.
The main advantage of using a professional expert witness is that they enjoy extensive experience testifying under cross-examination, and therefore it is not easy for the opposing lawyer to trip them up.
The main disadvantage is that at trial, the opposing lawyer will certainly make the jury aware that the expert no longer practices in their field of expertise. The use of professional expert witnesses is routine, however.
Testifying Witnesses vs. Consulting Witnesses
You can divide expert witnesses into two types based on their function: testifying witnesses and consulting witnesses. A court must qualify an expert witness before they testify. The party who calls the witness must disclose the witness’s identity to the opposing party.
The opposing party will have the right to cross-examine the witness under oath at a deposition prior to trial. A testifying witness might also prepare a report, which the opposing party has the right to see.
A party hires a consulting witness, by contrast, simply to understand the issues that present themselves in their case. They might also seek to identify weaknesses in their own case. They need not notify the opposing party of their use of a consulting witness. Like a testifying witness, a consulting witness might prepare a written report. The opposing party has no right to see it or even know its existence.
Qualifications of an Expert Witness
What qualifications does an expert witness need? If the witness will testify, the decision is up to the judge. Here are some examples of typical qualifications:
- An advanced degree such as an M.D. or a PhD.;
- Publications in professional journals;
- Membership in professional associations;
- Practical experience in their field of expertise; and
- Professional name recognition.
Public name recognition is less important. Dr. Oz, for example, wouldn’t get any credit simply for being a television personality.
Expert Witnesses in Settlement Negotiations
The great majority of personal injury cases settle before trial. Even after the complaining party files a lawsuit, most disputes resolve at the negotiating table, not in court. You can use an expert witness to gain an advantage in settlement negotiations.
It is said that “all bargaining takes place in the shadow of the law.” One of the implications of this principle is that demonstrating an ability to win in court with a credible expert witness strengthens your bargaining position.
Expert Witnesses at Depositions
A deposition only takes place after the complaining party has filed a lawsuit and the opposing party has filed a formal answer. The court can compel a party to cooperate with a deposition, and the parties can subpoena witnesses to compel their participation.
Depositions are out-of-court Q&A sessions between a lawyer and a hostile witness. They take place under oath, meaning that criminal liability is possible if the witness lies. Depositions typically take place in a lawyer’s office, and the judge usually does not attend.
A court stenographer, however, will produce a transcript. In many cases, the lawyer will question an expert witness simply for the purpose of discovering how the witness will testify at trial.
Scope of Questioning at a Deposition
A lawyer can ask questions at a deposition that a judge would not permit at trial. There are two reasons for this. First, if the judge does not attend the deposition, there will be no one to rule on the other party’s objection to a particular question.
Second, Georgia law allows lawyers to ask questions reasonably calculated to lead to admissible evidence. If the witnesses’ testimony is strong enough, the opposing party might decide to settle the case rather than lose at trial.
Expert Witnesses at Trial
An expert witness who testifies at trial in a manner that contradicts their deposition testimony leaves themselves open to an opposing lawyer who seeks to discredit them.
Another way the opposing lawyer might fight back against expert witness testimony is to call their own expert witnesses. Some trials devolve into a “battle of the experts” where two experts disagree with each other, and the court must decide which expert to believe.
Contact an Augusta Personal Injury Lawyer Today
If your case is complex enough for you to even consider using an expert witness, you almost certainly need a lawyer to assist you. It’s not just about winning or losing-–it’s about how much you win.
Under the contingency fee system, your Augusta personal injury lawyer has every incentive to maximize the amount of your personal injury compensation.