44 Trial Lawyer • Fall 2023 Get the most from your expert Chris Kuhlman By Chris Kuhlman OTLA Guardian Retaining the right experts is one of the most important and difficult jobs in any personal injury case — particularly in a medical malpractice or nursing home abuse case. A great expert will give you insight into your case from the get-go. A great expert will give you the confidence to try your case and provide the jury with inspiring testimony. A bad expert can result in flat and unpersuasive testimony to the jury, or worse, opting not to show up at the last minute and leaving you scrambling to find a replacement. While nearly every plaintiff’s attorney knows this, most still struggle with retaining the right expert. I believe this is primarily due to poor attorney mind-sets delving into expert investigation, retention and costs. Once you shift your mindset about retaining experts, though, identifying and working with the right expert becomes much easier. Costs No plaintiff’s lawyer likes to ring up a ton of costs on a case that will then sit for two or three years while the case meanders its way to trial. Even more frustrating can be having to hire an expert to provide testimony on a seemingly common-sensical position. The voice in the attorney’s mind may offer “Do I really need to hire an expert to state the obvious?” or “Can I try and settle the case without an expert first?” While no one likes to see costs go out the window, expert costs are not only necessary but usually the most important costs put forth in your case. Technology in the court room and demonstrative animations are great, but when I look back over trial wins the only unifying themes I tend to find are — an openminded jury and strong expert testimony. Cases with great visual aids have been lost and many cases have been won where the only visual aids have medical records and a flip-chart. When you are doing an analysis on whether to accept the case, understand and appreciate from the beginning whether there will be the need for experts. If so, simply accept it and worry about putting your time and money there. Look at your expert(s) as pillar(s) of your case and necessary. If you are hesitating on hiring an expert, consider passing on the case altogether or bringing on co-counsel who could assist you with costs. Overcharged for an evaluation When I speak to lawyers who have had a bad experience retaining experts, a familiar theme revolves around spending a lot of money on an expert or experts only to find out you do not have a case. One attorney offered, “I thought I had this great ER case that involved bloodwork, so I hired an ER doctor and a hematologist who each charged me $5,000, just to have the hematologist tell me that I did not have a case.“ Medical doctors, including boardcertified specialists, are generally some of the most-expensive experts to retain. These doctors have not only gone through medical school, but have also elected to spend additional time in school and training to receive a specialty in their focus of practice. OB/GYNs, oncologists, orthopedic surgeons and cardiologists will generally cost a premium to retain. It can be frustrating to hear bad news from them after spending thousands of dollars. There is a solution, though. Consider hiring an internal medicine physician or nurse practitioner (NP) to initially review the case to determine if there is merit. While an internal medicine doctor may not have the expertise or requisite qualifications to testify at your specific trial, consider having an internal medicine doctor or NP review your case for merit
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