Paralegals, Civil Litigation and Working With Expert Witnesses

With the current discovery mechanisms, the strengths and weaknesses of a case can be determined much earlier in the Civil Litigation process than ever before. Since expert witness testimony is necessary to establish or rebut allegations or defenses, it is critical that the attorney and paralegal maintain good communication with the expert by effectively providing the necessary materials and follow-up for compelling trial testimony.


Paralegals and Expert Witnesses

Early Expert Determination is Critical:

Prior to initial contact with the expert witness, it is vital that the attorney and paralegal meet to discuss the issues and determine what areas of professional expertise are most valuable to a particular type of case. It is important that this meeting take place early in the litigation. It allows the legal team to evaluate the case so that a discovery plan can be formulated. The legal team needs to decide if the materials currently on hand provide enough information to develop an opinion. If not, what additional information is needed?

The Initial Contact/Conflict Check:

The initial contact sets the tone for the professional relationship with the expert. The paralegal should immediately identify her/himself as a paralegal. The expert will need to make a point of contact with the Paralegal in order to establish a professional relationship. The paralegal should advise the expert of her/his role in the case, and whether other experts will also be retained.

The paralegal will want to obtain the following information prior to discussing the case with the expert: A copy of the expert's curriculum vitae, fee schedule, and retainer agreement.

Have the expert run a conflict check to confirm whether the expert has been consulted by your opponent prior to divulging case facts to the expert. This will eliminate the possibility of a disqualification motion later. Determine if the expert is available to testify at deposition and trial. Be sure to give the expert the venue, trial date, and any other deadlines.

Retention:

Once approval is given by the attorney to retain the expert, the paralegal will want to discuss the facts of the case with the expert and determine what documents, inspections, or examinations are necessary in order for the expert to form an opinion. Materials should be promptly furnished to the expert. Be sure to calendar for the discovery cut-off to allow enough time to notice the necessary examinations or inspections. Send a confirming letter regarding the expert's retention and fees, and include in this letter the trial date, venue, and discovery cut-off. In all written communication to the expert, be as brief and concise as possible. All writings provided to a retained expert are discover-able.

Basic Documents Needed:

Every expert has different criteria in order to form an opinion. However, there are some basic materials that need to be provided. Below is a description of five common Personal Injury expert witnesses:

Medical Experts: Medical experts for the plaintiff are typically the treating physicians, but can also be retained medical specialists. The paralegal will need to schedule a physical examination of the injured party. Be sure to provide the medical expert with the plaintiff's medical records, x-rays, or other diagnostic tests. If your client is the plaintiff, it is simply a matter of contacting the medical expert to schedule the appointment. A medical expert for the defense is commonly retained to perform a defense medical examination of the plaintiff. There are mandatory notice requirements that are set out in this code section that you will need to pay close attention to. The medical expert will also want to be provided with all reports and depositions of opposing physicians and the injured party. Calendar the date of the examination as a reminder to follow-up with the medical expert to determine if further assistance is needed.

Forensic Economist: A forensic economist is an expert that is retained to determine the total monetary damages suffered by the plaintiff, both past and future. An economist typically does not need to meet with the plaintiff. Most economists have a questionnaire or written guidelines to assist in determining what documentation is required. Some common materials that may need to be provided include W-2 forms, itemization of medical specials, loss of earnings verification, and medical reports that provide information regarding future medical treatment and the cost related to that treatment. An economist may also work hand-in-hand with a rehabilitation expert and life care planner. Therefore, the economist, rehabilitation expert, and life care planner will need to be aware of the other's retention so that proper communication between them can be provided.

Vocational Rehabilitation: If the injuries to the plaintiff result in the inability to return to his or her usual and customary occupation, it may be necessary to retain a rehabilitation expert to testify regarding future employability issues. As mentioned, a rehabilitation expert works closely with the economist and life care planner. The rehabilitation expert determines future employment, and specifically future earnings; the length of time to be rehabilitated into new employment; supporting expertise on future employ-ability  and the wages and benefits of that particular job in order for the economist to make calculations regarding the total damages. A rehabilitation expert also provides information on pre-incident employ-ability earning capacity. A rehabilitation expert will want to perform an interview and vocational testing on the plaintiff. If you represent the plaintiff, you will set up a time for the expert and client to meet. However, if you represent the defendant, you are somewhat limited. California Code of Civil Procedure Section 2032.010 et seq. does not require the plaintiff to submit to vocational testing. Therefore, the defense attorney will need to thoroughly question the plaintiff and plaintiff's employer at deposition, subpoena of plaintiff's employment records, and serve detailed Special Interrogatories on the injured party to obtain as much data as possible. Rehabilitation experts will need to review medical records, discovery responses, deposition transcripts of plaintiff and plaintiff's employer, former employment records, school records, job performance records, and job descriptions. Additional follow-up will be necessary with the expert after an examination or document review to determine if additional material is required.

Life Care Planner: A life care planning expert (LCP) becomes an important advocate for the injured party's future. The LCP summarizes the medical, educational, vocational, psycho-social  and daily living needs of the plaintiff who can function indefinitely only with professional assistance. The LCP will project the long term costs of care, future medical treatment, and establishes rehabilitative goals. A LCP works hand-in-hand with the vocational rehabilitation expert and economist to formulate the total damages of a plaintiff. A LCP will need to examine the injured party, review medical records, speak with the medical providers, review discovery responses, and review the deposition transcripts of plaintiff and medical providers. If your client is the plaintiff, the paralegal will set up a time for the plaintiff to be evaluated by the LCP. If your client is the defendant, you are limited because California Code of Civil Procedure Section 2032.010 et seq. does not require a plaintiff to submit to a life care planning evaluation. Additional follow-up will be necessary with the expert after an examination or document review to determine if additional material is required.

Liability: There are hundreds of liability experts depending upon the circumstances of the lawsuit. For example, if a plaintiff fell from a ladder, there could be an expert in ladder design. If you have an oilfield accident, you could have an expert on oilfield safety. If there is a forklift accident, an expert on forklift operation may be needed. The attorney selects a liability expert depending upon the circumstances of the accident. However, the most common liability expert is an accident reconstruction expert of a motor vehicle accident. An accident reconstruction expert will need to inspect the scene of the accident and all vehicles involved in the impact. There are notice requirements set out in California Code of Civil Procedure Section 2031.010 et seq. requiring the inspection of an opposing party's vehicle. In addition to the inspection, an accident reconstruction expert will need all accident reports, photographs, witness statements, party depositions, investigating officer's depositions, and any other depositions that describe the cause of the accident. Proper follow-up with the expert following the inspection should be made to ensure that no further material is required by the expert.

Follow-up:

Never leave the expert out of the loop. Not properly informing the expert of important facts, trial dates, or the discovery cut-off is setting the case up for failure. Effective use of e-mail can enhance the communication process greatly. Once the expert disclosure has been served, good communication is important so that depositions can be scheduled within the expert discovery cut-off. It is important to provide the expert with the opposing expert's deposition transcript. It is also a good idea to once again confirm with the expert his/her availability at trial.

Trial Exhibits:

Once the attorney is confident about the expert's opinions and testimony, the legal team and expert should begin the process of creating exhibits for trial. Have the expert review the exhibits to ensure they are effective teaching aids that will communicate the facts persuasively to the jury.

If you remember the three keys:

Organization
Communication
Follow-up

You will enjoy a successful professional relationship with the expert. 


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1 comment:

Sean Carter said...

gives you a great look behind the scenes and helps identify the things you should be looking for in a lawyer. When I needed a civil litigation lawyer in California my close friend was able to connect me with a really quality firm

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