By Attorney Tegan Schlatter & Paralegal Ted Naemura
It sometimes surprises clients to learn that a case must involve one or more expert witnesses. For example, if you build an addition to your house and a neighbor alleges that the construction caused groundwater to drain into and damage the neighbor’s house, you will want an expert on your side. It may be quite clear that you took adequate measures to prevent this result. But an engineer can provide a technical and scientific explanation that compels the other side to adapt its position to your expert’s proof.
How can expertise make your case?
Not all cases require an expert, but in some cases their work is critical. The example above presents at least three issues for an expert:
1) Did you (or your architect) create a faulty design for the addition?
2) Did you fail to exercise due care when you constructed the addition?
3) Did another person (such as an equipment manufacturer) create a product that failed to perform its purpose?
During a trial, a judge or jury will be curious about these issues and seek an explanation of how the flooding occurred. An expert can address that curiosity in a way that no other witness can. Under Oregon law, only an expert can present an opinion using specialized information that is beyond most people’s education and experience. So, while you may know that you purchased drainage pipe from Home Depot and installed it safely, an expert can explain why it is not possible for the drain to have failed.
Consequently, if there are issues in your case that require specialized knowledge, an expert should be retained.
If an expert is retained at the beginning of your investigation of claims, the expert can help assess the strengths and weaknesses of those claims. In addition, obtaining specialized and expert opinions may also improve the possibility of an early settlement by convincing the mediator and the other side of the strength of your position. Often, just before filing a lawsuit, attorneys will send the adverse party a demand letter that asks that party to pay or do something. Placing an expert opinion within the demand letter demonstrates that you are serious and have proof to support your claims.
At trial, in addition to providing testimony, an expert can help develop exhibits that more easily explain the technical issues in the case. The expert can assist your attorney with pointing out the flaws and weaknesses in the other party’s expert testimony. And, the expert can help develop questions for the witnesses.
If your case involves technical, scientific, or specialized issues, it is always worth considering how an expert will help.
The attorney-client privilege, and the lack of expert privilege.
One of the most important roles your attorney provides is that of your confidential advisor. That confidence allows you to explain what is important to you without worrying about disclosure to the other side. If you speak confidentially with your attorney, outside the earshot of other people, the conversation is privileged.
You can inadvertently waive this confidence if you talk about your case with anyone other than your attorney or his or her staff. Your expert falls in the “anyone other than” category.
For example, in any case filed in federal court, in any state, your opponent has a right to learn all the facts that your expert learns in connection with working on your case. The other side also has a right to question the expert under oath, on the record, before trial. At such questioning (known as a “deposition”) your expert can anticipate being asked to identify all the documents he or she examined up to that point, and all the persons he or she talked to as well as what they discussed. The last thing you want is for the expert to pull out an e-mail, from you, containing your initial efforts to locate the expert, your impressions about the case, your opinions on why you should win, your strategy for the case, or—worst of all—the weakness in your case that you have identified.
We know that with the easy availability of information on the Internet, most clients would do a pretty good job of locating a person with expertise on a vital issue. But when your attorney locates experts, you can have confidence that the information disclosed will not later be detrimental to your case.
Protecting your budget.
Saving costs with early settlement
When a case merits retaining an expert, everyone should keep the larger financial goals in mind. Sometimes, the goal is to reduce damages. For example, in a personal injury case, a battery charger detonated when used at a construction site. The plaintiff sued the battery charger manufacturer alleging the concussive force damaged his hearing. The plaintiff’s expert gathered some information regarding the charger and the buildup of hydrogen within its enclosure. The information demonstrated how the charger had created enough force to harm the plaintiff’s eardrums. The expert’s presentation of the information convinced the defendant that the plaintiff’s case had merit, so the defendant was willing to negotiate. In settling, the injured plaintiff kept more of his financial recovery because his lawyer was able to charge less. The defendant benefitted by settling the case for its true value, with the lowest potential for defense costs.
We may be able to create ways to break down the expert’s work (and later invoice) depending on what the case requires. Your case might benefit from a simple opinion letter (which is at the inexpensive end of the cost spectrum). At the other end, we can recommend ways you can budget for how you pay the expert. For instance, perhaps the expert will agree to charge separately for trial, saving you money if the case ends early.
We can help.
One of the most valuable services your attorney can provide is to develop and evaluate information. Determining when experts are required, and who to retain, is part of that service. If you need help in assessing a potential claim, pursuing a claim, or defending a claim, Jordan Ramis can help. If an expert is required, Jordan Ramis has relationships with skilled experts in countless specialties to help ensure you have the right people in your corner.
 There can be some exceptions and this article is not intended to address all attorney-client privilege issues. Please contact us if you have questions.