What You Need To Know About Choosing An Expert Witness

When preparing to go to trial, attorneys should look at different ways to strengthen their cases. In many situations, hiring an expert witness has many benefits you should consider, especially in the early stages of preparing a case.

For instance, if you’re involved in a case of billing fraud or medical malpractice, an expert witness can bring new information to light and explain complex ideas to the judge and/or jury. 

More importantly, they can help you by putting together an expert witness report, which is one of the greatest resources you can leverage in your case.

Here are the basics.

The Role of The Expert

As the name suggests, an expert witness is an individual who has a great depth of knowledge relevant to the matter of the case. 

They can serve multiple purposes, most commonly:

1. Determining the value of the case

2. Creating defenses, claims, and counterclaims

3. Assisting with the document review process

4. Writing discovery requests 

5. Challenging the expert of the opposing party

6. Evaluating and calculating the damages

7. Assisting the factfinder during testimony

8. Analyzing and responding to claims and theories from the opposing party

While they may handle multiple tasks, experts can be either of a consulting or testifying type. A testifying expert can present evidence on the trial while a consulting one has been consulted before the litigation or trial but doesn’t testify in court.

Naturally, a testifying expert (since they’re a witness) must be disclosed and involved in discovery, while a consulting expert doesn’t need to be disclosed to the other party. 

Qualifications of The Expert

Since the qualifications are always challenged, you need to do your homework. The first step is reviewing the expert’s experience and qualifications to determine if they have the necessary expertise in the subject matter relevant to the case.

Most importantly, you also need to make sure that their prior testimony or reports don’t conflict with the case they are currently in consideration for. Additionally, check if they have any prior disqualification or Daubert challenges on their track sheet. 

Naturally, if you learn that the expert you want to retain has been disqualified from a previous similar case, you should find someone who’s a better fit.

Expert Witness Report

By leveraging this document, you can provide the court with different details, processes, and evidence of the subject matter.

1. The structure of the report

The way an expert witness report is constructed usually depends on the type of the case, along with how the expert frames their methods while connecting different pieces of evidence. Typically, it will be based on a testimony in the case.

An expert witness report usually consists of several pages and contains a plethora of information. One of the key parts is the disclosure which identifies the names of the defendant and the plaintiff, as well as the relevant dates of the stages of the case and its main issue.

The report will be signed and then given to the judge or the attorney. It has to contain a comprehensive statement that covers the opinion, different processes, and describes the evidence and the incident. 

For maximum clarity, an expert witness report should contain visual aids such as diagrams and different exhibits.

Furthermore, the report must contain the expert’s qualifications and their publications. It must also list other cases where the expert presented testimony and the compensation for working on the case at hand.

The meat of the expert witness report contains the expert’s opinion of the case. For instance, they may describe the incident and their opinion on why the issue occurred. In personal injury cases, the witness describes how the negligence of the defendant put the plaintiff in harm's way. 

The summary of the facts is usually found at the beginning of the report. It describes everything the expert will testify about or the details they will explain in the courtroom. 

This section will also contain any contradictions against the evidence, coupled with any criticism on how the opposing party addressed this evidence. Typically, the reconstruction of the events, along with the visual aid, will also be found at the beginning of this section.

Is the expert witness report shielded from discovery?

Depending on the jurisdiction, the rules may be different. This is generally the case with drafts of the reports. In some jurisdictions, these are shielded from discovery while in others, they need to be made available to the opposing party.

However, even in jurisdictions where the drafts aren’t discoverable, the attorney still must provide the information on communications related to the compensation of the expert, including the data that the attorney provided the expert with. In addition, they must identify the assumptions they provided that the expert will use to form their opinion in the report.

Expert Witness Testimony

Even if they are your witness, an expert witness may be deposed by the opposing counsel. That way, they can question the expert on their qualification, methodology they used in the report, and key assumptions. They may also ask questions about the analyses that the expert rejected and any information that didn’t end up in the report.

In the deposition, the other party can limit the scope of the expert witness’s testimony by learning what they aren’t going to testify about on the trial stand.

In both state and federal courts, the judge will use the Daubert standard to determine if the testimony is scientifically valid and whether proper reasoning was used for the facts of the case. 

The Daubert standard answers the following questions:

1. Can the theory or technique be tested?

2. Is the theory based on peer-reviewed research?

3. Does the technique used have a significant error rate?

4. Does the technique or the theory have a maintenance of standards?

5. Has the theory or technique been accepted by the scientific community?

Any statement made during the deposition can be used by the opposing party to impeach the expert at trial. 

Your Go-To Experts For Medical Billing

If your client is involved in a case where medical bills are a major factor, you need an expert witness who can clarify all the CPT codes in the plaintiff's medical bills.

We can help your case with a comprehensive expert witness report that covers the analysis of any medical bills, as well as the analysis of the charges and the summary of issues and processes.

Help your client win their suit by letting MBA assist you every step of the journey and demystify any billing errors. Call (800) 292-1919 to schedule an appointment with the experts for medical billing with one of the best track records in the industry.