The Expert Witness in Your Next Trial by Rhett Fraser, OTLA Guardian If you wanted to learn about rocket ships, who would you consult: your next-door neighbor or a NASA engineer? Unless your neighbor has some truly remarkable qualifications, you would probably pick the engineer. Why? Because, presumably, getting the right information is important to you and the engineer is an expert. For the same reason, trial attorneys use expert witnesses in many different types of civil trials. Civil trials frequently are very complex and highly technical. For those of us who represent injured parties in medical negligence cases, it’s not enough for us to assert to a judge or jury that our client is badly hurt and deserves compensation. We must explain the “how” — which is generally very technical — to the jury by connecting the dots. Expert witnesses allow us to make those connections. Expert witnesses play a pivotal role in bridging the gap between technical expertise and legal standards. They can explain, for example, why a doctor’s action that looks ostensibly reasonable on its face is actually negligent. That expert’s explanation is even more essential when the plaintiff’s medical condition may be unfamiliar to the jury — like a failure to diagnose an uncommon medical condition — or involves a surgical procedure. Finding the Right Expert The ideal expert possesses extensive knowledge enabling them to interpret the issue at hand, has impressive credentials, and an impeccable ethical reputation. The witness must also be able to explain complex concepts clearly to lay people and should be personable and engaging — someone a jury wants to listen to. Nobody likes an arrogant expert. Who can serve as an expert can often be as broad as the imagination of the lawyer handling the case. Under ORE 702(1) an expert witness is a witness with specialized or technical knowledge, skill, training or education who can assist the trier of fact to understand evidence presented or determine a fact in issue by way of opinion testimony or otherwise. An expert witness can provide their opinions, especially regarding their field’s standard of care or practices. “Expert testimony” is often used by courts and lawyers as a short expression for opinion evidence given by a witness who has been qualified as an expert in the particular field of inquiry involved in the litigation. OEC 702; McKee Elec. Co. v. Carson Oil Co., 301 Or 339, 350 (1986). When looking for an expert witness for a professional negligence case, your expert witness must be familiar with the situation that occurred, the relevant records and the professional standard of care. The process of selecting and preparing an expert witness can be time-consuming and quite costly. Attorneys must ensure the expert’s qualifications and testimony align with the legal standards required by the court, and they must also prepare the expert to withstand cross-examination effectively. Spending money up front to have an expert tell you what you don’t want to hear can ultimately save you a lot of time, money and grief down the road in avoiding taking on a case where you should have taken a pass. There are many ways to locate great expert witnesses for the specific facts of your case. Scholarly articles or journals frequently contain articles on a variety of subject matters and you can contact the authors. Talk to other lawyers in the community about who they retained on other similar cases. Consult your professional networks such as OTLA or AAJ or search their listservs. Attend conferences about subject matters that frequently arise in your cases. Look for jury verdict publications such as Jury Verdicts NW that frequently list experts from other recent trials. There are excellent companies that exist to help connect you with specific quality experts, e.g., OTLA Annual Partner Expert Institute. Finally, in personal injury cases, there are no more credible experts than your client’s own medical providers. RHETT FRASER practices personal injury and medical malpractice in Oregon and Washington. He is a member of OTLA Guardians. Fraser is the owner of The Fraser Law Firm, 101 SW Main Street, Suite 1900, Portland, Oregon 97204. He can be reached at [email protected] and 971-266-8877. 20 Trial Lawyer | Winter 2025
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