The Importance of Expert Witnesses

The purpose of an expert witness in a trial is to aid the judge or the jury in determining the facts of a case. Often the facts of a case may be difficult to understand, especially for the average person, and those facts can range far outside the scope of their expertise and experience. As an example, in a medical malpractice case against a cardiac surgeon, it is unlikely that the average juror would be familiar with the correct procedures and techniques used in such a surgery, and likewise, the manner of deviation from those procedures and techniques. That is why expert witnesses can be a vital method for reaching jurors, as explanations from an expert can offer up the facts in a way that is more easily absorbed.

In personal injury cases, an expert is usually needed to evaluate the injury and long-term prognosis for the plaintiff and present those findings to a jury. Generally, this leads to the so called, “Battle of the Experts”, in which both the plaintiff and defendant hire expert witnesses to examine and testify about the severity of the plaintiff’s injury and the ultimate prognosis.

The examination done on behalf of the defendant is by way of an “Independent Medical Examination” or IME. However, these IME’s are generally anything but “independent” with the perhaps unsurprising results being that that defendant’s expert finds that the plaintiff’s injuries are much less severe than what the plaintiff’s physician believes. Often, the plaintiff’s expert is, in reality, the treating physician and knows the plaintiff much better than the defendant’s expert who only sees the plaintiff once and only for a brief examination. And so the experts square off in the courtroom, and the jury is left to discern whose arguments are strongest.

The damages portion of a personal injury case is not the only place where expert witnesses can be helpful. Expert witnesses are also useful in establishing the liability of the defendant with regard to a plaintiff’s claim of negligence. This is crucial in medical malpractice cases, but such testimony is also useful in other negligence actions, such as motor vehicle accidents, and slip and fall cases.

In motor vehicle accidents, an expert witness may be necessary to perform an accident reconstruction. Expert witnesses can determine and testify as to crucial evidence about the accident, such as the approximate speed the vehicles were traveling, how the vehicles collided, whether proper safety precautions were taken, such as breaking and allowing for proper distance between the vehicles.

Meanwhile, in a slip and fall case, an expert can testify as to whether the defendant took proper safety precautions to safeguard the plaintiff or should have warned the plaintiff of any dangers posed at the defendant’s establishment.

The timing as to when to hire an expert witness for a case is also crucial. The law in New York requires that all expert witnesses expected to testify at trial be disclosed in a timely fashion to the opposing party. This is done to avoid surprise at trial and to afford the other party an opportunity to procure an expert of their own choosing to rebut the testimony of the expert witness. This is why more often than not experts are hired well into the litigation process. After all, if a case is expected to settle quickly there is little desire to spend money on an expert whose testimony will never be needed.

However, when it comes to liability experts, hiring the expert early in the game has several advantages especially when liability is not clear-cut. A common tactic for defendants, especially in personal injury cases such as slip and falls, is to have the case dismissed through a summary judgment motion. A summary judgment motion asks the court to dismiss the case on the grounds that there is no liability as a matter of law due to some legal loophole, or element of negligence not being met. However, having an expert disclosed prior to the defendant’s making such a motion and preparing a report in opposition to such a motion is a useful and effective counter-measure to this defense tactic.

The use of expert witnesses can be a very effective tool for plaintiffs to aid and convince the jury to seeing their point of view and help them render a just and fair decision.

 

“The Importance of Expert Witnesses” was written by Michael B. Schulman, Managing Attorney.

A Juror Grappling With The Evidence

A Juror Grappling With The Evidence:  While serving as a juror, you will be presented with a wave of evidence that you are expected to consider and draw conclusions from. At times, the evidence may be overwhelming, and so taking a structured approach is helpful to making sense of it all.

A juror need not accept all the evidence admitted in trial as true. Rather the juror must evaluate the testimony and decide how much weight to assign to a given testimony surrounding each piece of evidence. It is important to keep in mind that a testimony may not be reflective of reality. For example, the witness may be lying, or he or she did not accurately observe the events as they transpired. The witness’s memory may have faded, or he or she may not have been clear about the facts, which could, in a juror’s mind, lessen the weight given to such evidence. There is not a set rule based upon which a juror is supposed to evaluate the evidence. A juror is expected to decide the reliability of information based upon the tests he or she applies on a daily basis, and this is molded by their life experiences and background.

There are various questions that a juror should answer about a given witness when weighing the witness’s testimony: (1) whether the witness has an interest in the outcome of the case; (2) whether the witness has a bias or prejudice; (3) the age of the witness; (4) the appearance of the witness; (5) the demeanor of the witness when relaying his or her testimony; (6) the opportunity and the circumstance under which the witness observed the facts he or she is testifying to; and (7) the probability of the witness’s testimony in light of the remaining evidence.

The evidence presented may conflict with other evidence. Therefore, the juror should try to reconcile the evidence, weighing it all in turn. However, if the juror is unable to fit the conflicting evidence, then the juror must decide which evidence to accept and which evidence to reject.

At times, a given testimony is not contradicted with an opposing testimony, but still appears unproven. A jurordoes not need to accept unopposed testimony. Each member of the jury must assign weight to the testimony, especially when it is not opposed, and a juror can reject the testimony in its entirety, as untrue, if they so deem. The important thing to remember as a juror is to weigh each testimony and each piece of evidence.

A case may involve events that have occurred at a certain location. The juror should refrain from visiting the location, because the present condition of the location may be different from what it was at the time that the events occurred. Therefore, the juror must rely only upon the evidence presented at trial in order to assess the condition and circumstance under which the events occurred.

A case may also involve heightened media attention.   Therefore, if necessary, a juror may be instructed to refrain from gathering information about the case through the newspaper, radio, television, or social media. A juror is not permitted to conduct his or her own research about a given matter or topic, whether through books, magazines or the Internet. As a precaution, the juror is asked to turn off electronic devices. As mentioned above, the juror must only draw his or her conclusions from the evidence admitted at trial.

Do not be overwhelmed. Remember, there are other jurors with whom you will have the opportunity to discuss and assess the evidence. You are not on your own.

 

“A Juror Grappling With The Evidence” was Posted by Michael B Schulman, Managing Attorney

To Be a Juror

We may be selected to report for jury duty, and more often than not, we are not chosen, but when you are, it is important to realize what filling that role means, to be a juror. At one point or another in our life, we have all received a notice asking us to serve on a jury. The jury is charged with the task of deciding which of the case facts have been proven, and based upon the proven facts apply the law to the decision. The jury is not expected to know the law, but rather is given the law by the judge. The jury must apply the law, even if they do not agree with the law, and they are not permitted to turn to outside sources when considering the law. The conclusion drawn upon applying the law to the facts is the verdict.

The jury determines the facts based on testimony and exhibits submitted into evidence throughout the trial. It is the jury’s job to determine and judge these facts. The jury will decide which witnesses to believe. But the jury does not have to believe the entire testimony of a witness and may believe only a portion of it. The jury will then assign weight to the testimony, which is an important part of a juror and a jury’s job as a whole.

The jury is not to take into consideration the attorney’s personal opinion about the facts or witnesses.  Similarly, the jury is not to be swayed by any appearance of partiality on the part of the judge.  The presiding judge is permitted to ask questions to the witnesses, and the judge is supposed to make sure that he or she appears impartial.

Questions to a witness may be objected to and the judge may agree to the objection; therefore the question will not be answered. However, there are instances where the question is answered before there was a chance to object. In that instance, the judge will have the answer stricken or removed from the record. Whether the question is objected to or the answer is stricken, the jury is not to draw any inferences from the unanswered question or a stricken answer. Basically, the jury is expected to make believe that they never heard the question and answer.

Serving as a juror may not be as easy as it seems; after all, we are being asked to be judges of the facts. Being a juror, however, is our civil duty and therefore, we should take the opportunity to fulfill our duty with pride. And most certainly, we will come out having learned something about how our judicial system actually works from a source other than television, radio and pundits.

 

The article “To Be a Juror” was Posted by Michael B Schulman, Managing Attorney