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7 months ago General Info

How to Retain and Use your Expert Witness

Litigation attorneys have the option to use an expert witness, defined in the Federal Rules as someone who is “believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness’s specialized opinion about an evidence or fact issue within the scope of his expertise”.
Experts can play a critical role in the management of your case, including:

  • Bringing in specialized outside knowledge about a specific industry or body of knowledge.
  • Assisting in formulating and analyzing the theory of the case, from an industry perspective rather than a legal perspective.
  • Assisting in formulating discovery requests for evidentiary materials.
  • Assisting in structuring the questions for witnesses in depositions.
  • Rebutting the testimony of the other side’s expert witness (if they have one and you don’t, you are at a distinct disadvantage).
  • Adding credibility to your arguments in the eyes of a jury.
  • Explaining a case in non-legal non-technical terms to the jury; educating them.

How should you approach selecting an expert?

  • Select early in the process of developing your case; an expert can be valuable in the initial stages of defining your case, requesting discovery materials, and framing questions for witnesses in depositions; selecting an expert early can give him sufficient time to undertake a detailed analysis, industry research, damages calculations, and develop a strong Report; a rush job does your client no favors.
  • Select carefully; rely on references and testimonials from other litigators; read the candidates’ Reports from previous cases, to avoid embarrassing changes of opinions; try to interview the prospect in person, even if over Skype (for an out-of-town expert), to get a sense of the expert’s ability to handle himself in an adverse situation; some experts have made video clips of themselves which you can review.
  • Consider retaining the individual initially as a non-testifying consultant, to get a feel for how you can work with this expert, and then shift him into the role of testifying expert, if your particular court will allow that (some do, some don’t).

Consider some essential ground rules in using this witness:

  • Discuss and clarify your expectations of the expert – how do you view the case, what are the key elements, what do you want him to focus on (and what not to focus on); what specific opinions are you seeking; discuss the anticipated timeline for the case, and in particular when you think you will need him for deposition, Report, rebuttal, and trial.
  • Clarify with your expert the rules in your jurisdiction on methods of communication; are the expert’s work products and communications subject to discovery?
  • Control your expert; remind him that he is not an advocate (an easy trap to fall into, and the #1 concern of many trial judges); very carefully define his roles and responsibility, and the limits to those; remember that if your expert’s work is thrown out on a motion in limine, you have wasted a lot of time and money (I have seen that happen!).
  • Be sure to review drafts of your expert’s Report; if there is no discovery issue, then it is a simple matter to email drafts back and forth; in jurisdictions where there is discovery of expert’s communications, there are other ways to get around that, including the use of laptop and projector, GoToMeeting or Webinars (something I routinely do).
  • Rehearse before the deposition and especially before trial; your expert’s Report will be the basis for his deposition, which will be the basis for trial testimony, so it is important for the expert to be consistent, which means a rehearsal, perhaps even a ‘mock deposition’ and role-playing of difficult questions.
  • Use the expert to assist in preparing detailed trial exhibits.
  • If your case gets to a jury trial, help your expert appreciate that his role has now shifted from “expert” to “educator”, serving to clarify complex issues to a jury that may be feeling overwhelmed by the late stages of the trial; your expert needs to demystify the case.
    Your expert is an integral part of your legal team, capable of adding considerable value to the ultimate resolution of your client’s case.

 

Dr. Don Keysser, CM&AA, Managing Principal of Hannover Ltd., has over 30 years experience as an investment banker, and has served on 28 business-finance cases to date, including issues of defaulted financings, investor disputes, damages calculations, due diligence and disclosure, and fraud. He works nation-wide, and has worked as both a plaintiff’s expert and a defendant’s expert. Don is an Associate Professor of Finance. Don@HannoverConsulting.com

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When to Hire a Personal Injury Lawyer

If you’ve been involved in an accident, you should consider hiring a personal injury lawyer to handle your case. If you’ve suffered severe injuries, medical expenses or loss of wages, a lawyer who’s familiar with these sorts of cases could help you receive more compensation than you would get without a lawyer, even after accounting for legal fees. Here are some factors to consider when thinking about hiring a personal injury lawyer.

Car accidents are the most common type of personal injury claim, followed by medical malpractice, slip-and-fall accidents, work-related injuries, premise liability and dog bites. We’ll primarily consider injuries due to car accidents here, but many of these points apply to all personal injury claims.

Minor accidents that cause minimal and temporary injury probably don’t warrant hiring a personal injury lawyer. In these cases, the settlement offered by the liable party or their insurance company may be fair. If you go this route, you may receive your settlement in a matter of days. If you end up going to court, however, reaching a verdict may take much longer than that.

If you end up disputing with the negligent party, that’s a strong signal that you should at least consult with a lawyer. Find a lawyer who practices in the area personal injury law, which is also known as tort law, and specifically one who specializes in your type of claim, such as car accidents.

It’s a sad fact, but the insurance company for the other driver probably won’t immediately pay for your medical treatment, and in the meantime you’ll need to go through your own health insurance carrier. Also, according to the American Bar Association, your own car insurance plan may include Medical Payments coverage for this purpose. Finally, if you hire a lawyer, he or she can send your medical provider a Letter of Protection that promises to pay your bills when your legal case finalizes.

Be careful when you talk to insurance companies, and try to get everything in writing. Claims adjusters will try to work out the best deal for the liable party’s insurance company, so make sure you’re looking out for your best interests. Don’t immediately accept their first offer, and take this time to assess whether or not you’ll need a lawyer. You’ll need to cover your health care expenses as well as property damage claims and any loss of income.

Sometimes multiple factors may contribute to an injury, like a defective tire with tread separation that leads to a car accident. Liable parties may include a driver, a product maker, a third-party supplier to that maker, a service provider (mechanic) or anyone who performed work related to causing your injury. Figuring out all the liable parties in your case is one important job for a lawyer to undertake.

Lawyers are experts and employ a team of experts. The insurance company fighting your claim has experts, and so should you. Get a lawyer who is equipped to properly investigate the incident. “We may turn to survey teams, crash reconstruction experts, industry engineers, and other specialists to help us build a strong case on your behalf,” says Rich Newsome, a personal injury lawyer in Orlando. Also, when seeking medical care for your injuries, try to find medical staff who are familiar with personal injury cases and willing to testify in court.

Personal injury lawyers often take compensation on a contingency basis, meaning that you won’t need to pay the legal fees if you lose your case. A lawyer will take a cut somewhere between 25% and 40%, depending on the complexity of the case and whether you settle or take the case to court. Keep in mind that you may still be responsible for paying ancillary fees for outside services hired by your lawyer, regardless of the outcome of your case.

To boil it down, you should ask a personal injury lawyer if you need his or her services. Most lawyers will be willing to give you free advice, so there’s no risk in seeking consultation from an experienced personal injury lawyer as a first step. Seek a lawyer you can trust to advise you to either settle with the insurance company directly, use their services to negotiate a better settlement or take your case to court.

 


Mitchell Collins, law school student and freelance writer

Glossary of Commonly Used Legal Terms*

The law has a language all its own, often referred to as “legalese.” Good legal professionals will explain terms relevant to your case as you go along. Here are a few common terms that will help you navigate the legal process.

Affidavit

A written or printed statement made under oath.

Alternative dispute resolution (ADR)

A procedure for settling a dispute outside the courtroom. Most forms of ADR are not binding, and involve referral of the case to a neutral party such as an arbitrator or mediator.

Answer

The formal written statement by a defendant in a civil case that responds to a complaint, articulating the grounds for defense.

Arraignment

A proceeding in which a criminal defendant is brought into court, told of the charges in an indictment or information, and asked to plead guilty or not guilty.

Bail

The release, prior to trial, of a person accused of a crime, under specified conditions designed to assure that person’s appearance in court when required. Also can refer to the amount of bond money posted as a financial condition of pretrial release.

Bench trial

A trial without a jury, in which the judge serves as the fact-finder.

Burden of proof

The duty to prove disputed facts. In civil cases, a plaintiff generally has the burden of proving his or her case. In criminal cases, the government has the burden of proving the defendant’s guilt.

Class action

A lawsuit in which one or more members of a large group, or class, of individuals or other entities sue on behalf of the entire class. The district court must find that the claims of the class members contain questions of law or fact in common before the lawsuit can proceed as a class action.

Damages

Money that a defendant pays a plaintiff in a civil case if the plaintiff has won. Damages may be compensatory (for loss or injury) or punitive (to punish and deter future misconduct).

Default judgment

A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.

Defendant

An individual (or business) against whom a lawsuit is filed.

Defendant

In a civil case, the person or organization against whom the plaintiff brings suit; in a criminal case, the person accused of the crime.

Deposition

An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial. See discovery.

Discovery

Procedures used to obtain disclosure of evidence before trial.

Evidence

Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case in favor of one side or the other.

Felony

A serious crime, usually punishable by at least one year in prison.

Grand jury

A body of 16-23 citizens who listen to evidence of criminal allegations, which is presented by the prosecutors, and determine whether there is probable cause to believe an individual committed an offense.

Hearsay

Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.

Injunction

A court order preventing one or more named parties from taking some action. A preliminary injunction often is issued to allow fact-finding, so a judge can determine whether a permanent injunction is justified.

Interrogatories

A form of discovery consisting of written questions to be answered in writing and under oath.

Jurisdiction

The legal authority of a court to hear and decide a certain type of case. It also is used as a synonym for venue, meaning the geographic area over which the court has territorial jurisdiction to decide cases.

Litigation

A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.

Misdemeanor

An offense punishable by one year of imprisonment or less. See also felony.

Motion

A request by a litigant to a judge for a decision on an issue relating to the case.

Plaintiff

A person or business that files a formal complaint with the court.

Pleadings

Written statements filed with the court that describe a party’s legal or factual assertions about the case.

Pro se

Representing oneself. Serving as one’s own lawyer.

Procedure

The rules for conducting a lawsuit; there are rules of civil procedure, criminal procedure, evidence, bankruptcy, and appellate procedure.

Sentence

The punishment ordered by a court for a defendant convicted of a crime.

Settlement

Parties to a lawsuit resolve their dispute without having a trial. Settlements often involve the payment of compensation by one party in at least partial satisfaction of the other party’s claims, but usually do not include the admission of fault.

Statute

A law passed by a legislature.

Statute of limitations

The time within which a lawsuit must be filed or a criminal prosecution begun. The deadline can vary, depending on the type of civil case or the crime charged.

Tort

A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.

Venue

The geographic area in which a court has jurisdiction. A change of venue is a change or transfer of a case from one judicial district to another.

Verdict

The decision of a trial jury or a judge that determines the guilt or innocence of a criminal defendant, or that determines the final outcome of a civil case.

Voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

*See these and more definitions at uscourts.gov

Frequently Asked Questions

How are attorneys paid?

Estimating the cost of legal representation is an important consideration when hiring a a lawyer. It is good to have a frank and open conversation with your lawyer about money right from the start, so he or she understands your budget, and you have realistic expectations about how much his or her services will cost.

Many attorneys offer a menu of fee arrangements and payment methods, including payment by credit card, to accommodate the needs of their clients. Here are some examples of common fee structures:

Retainer Agreement

Many lawyers require an upfront fee for services called a “retainer.” The amount of a retainer could range from hundreds to thousands of dollars, often depending upon the complexity and scope of the matter you are hiring your attorney to resolve. The monies are held on account, and your attorney should provide you with a billing record as he/she deducts the cost of services from the retainer. If your matter is resolved before the retainer runs out, the remaining funds will be returned to you. If the matter will cost more than the initial retainer to resolve, your attorney may require another retainer, or in the alternative, may bill you for additional fees.

Another use of a retainer fee is when you pay an upfront amount to have your attorney standing by to provide legal advice or handle recurring matters.

Hourly Fee

Some attorneys simply charge an hourly fee for the time spent working on your case. Sometimes, a lawyer’s fee for time spent in court is higher than for time spent doing other tasks.

Flat Fee

A flat fee is a fixed amount you pay for legal services. This payment option is usually offered for a service that is simple and does not involve a dispute, for instance, a bankruptcy filing or uncontested divorce.

Consultation Fee

Many lawyers offer to meet with you the first time free of charge. This is an opportunity for you to interview the attorney and see if he or she is the right lawyer for you, and an opportunity for the lawyer to evaluate whether or not your case is one they would represent. However, some attorneys charge for an initial consultation and will expect payment at the time of the meeting. Be sure to ask if there is a consultation fee before you book an appointment.

Contingency Fees

Some attorneys agree to take a case “on contingency.” That means rather than being paid up front, they are willing to shoulder the cost of your case and get paid if you win an out-of-court settlement or in-court verdict. Contingency fees include the cost of your attorney’s time, time of staff members who worked on your case, and hard costs associated with your case, like copy and mailing costs, and court filing fees. If you lose your case, you will likely still be responsible for hard costs. Generally, attorneys who work on contingency are those who handle litigation matters against insurance companies or other large entities. Attorneys in Minnesota are prohibited from working on contingency in certain types of cases.

Will my attorney charge me for communication via email?

In many cases, the answer is yes. Email is an efficient way to communicate, and it often takes less time for your attorney to answer a brief question this way. However, email communications are still a function of your attorney’s representation and part of the official legal record. In some instances, he or she may spend significant time drafting an email. Your attorney may have a policy of not charging for reading and responding to a brief note. But keep in mind that all communications, even brief ones, are generally logged and billed. It is a good idea to ask ahead of time if you will be billed for short emails or phone calls.

How do I choose an attorney?

Identifying the right attorney is a very personal and important decision. Often, this person will be representing you in a matter that has great emotional, financial or other consequences. You will likely want to feel confident that the person you choose is both professionally qualified and also someone whose values are similar to your own. The research you do ahead of time will help you narrow down those lawyers in your area whom you feel are a good match. The Minnesota State Bar Association is another resource you can use to find out more about local attorneys and their professional standing.

How do I prepare for a consultation with a lawyer?

Good communication is vital to the successful outcome of your legal case. It begins with you and your ability to tell your lawyer exactly what is happening and precisely what you want to accomplish. The better prepared you are, the easier it will be for your attorney to get up to speed quickly and begin guiding you toward your goal.

Organize Your Thoughts

Consider preparing a brief outline or notes about your case that will help you stay on track and communicate the main points. Remember to be thorough, but succinct. Think about which details are most important. To make it simple, answer the five Ws: Who, What, Where, When and Why. Who is involved? What happened? Where did it happen? When did it happen? Why are you seeking legal advice, or What outcome are you trying to obtain?

Bring Documents

Any documentation you have to support your claim will help your attorney make a quick evaluation your case.

Don’t be Afraid to Ask Questions

It’s smart to ask questions. In addition to some of the general questions we recommend asking when hiring a lawyer, make a list of questions you have that are specific to your case.

If your lawyer uses terms you don’t understand, don’t be afraid to ask him or her to explain. A good lawyer will want you understand their representation and your rights.

Take Notes

You will no doubt have a lot on your mind during your conversation with your lawyer, and you may have trouble remembering later what he or she said. It is a good idea to take notes so you can review and prepare any follow-up questions you have for your next meeting.

Read Before You Sign

Be sure to carefully read the fee agreement or other documents your attorney provides before you sign. It’s perfectly okay to take the documents home with you so you may have time to read them before making a commitment. If there is anything you don’t understand, ask your attorney to explain it again. It is better for everyone to be on the same page from the beginning, than for a misunderstanding to arise later.

Tell the Truth

In order for your attorney to help you, he or she must fully understand what is happening. Don’t be embarrassed about admitting where you may be at fault. If something is potentially detrimental to your case, it’s better they hear it from you in the beginning, so they can work with you to minimize the damage. Remember, your attorney is professionally obligated to honor strict rules of confidentiality.

Stay Calm and Focused

Many legal matters involve upsetting circumstances. It’s easy to get caught up in emotions and details that may make it hard for your attorney to understand how he or she can best help you. Your good preparation will help you stay calm and focused on the objective points of your case. It will also save you money, as many attorneys are paid hourly. The more organized you are, the less time your attorney will have to spend piecing together the facts, and the more efficiently he or she can get you to your goal.

What if I have a dispute with my attorney?

Most problems can be resolved with good communication. Let your lawyer know if you are dissatisfied with his or her representation for any reason. The problem may be a simple misunderstanding, or you may be able to negotiate a solution. If you decide to fire your attorney and hire someone else, you will likely still have to pay your lawyer for time already spent on your case. The lawyer must return your file.

If you believe your attorney is acting unethically or unlawfully, you may contact the Minnesota Attorneys Professional Responsibility Board at (651) 296-3952 or (800) 657-3601.

What is the difference between a civil and criminal case?

A civil case involves a dispute or lawsuit between private citizens, companies or organizations. A criminal matter involves an offense against the state and society as a whole, and is an action brought by the state. The same misconduct can lead to both civil and criminal actions.