Thursday, November 21, 2013

Expert Witnesses

In many trials, especially products liability lawsuits, expert witnesses are called to explain aspects of a case that a lay person (including the judge) may not understand.  Most often each side will hire its own expert.  Same facts, same circumstances, different opinions.

Surprised?  I guess we shouldn’t be.  Experts may charge very high fees to investigate, write a report and testify.  If an attorney is putting out that kind of money, it will happen only once if the opinion is not what the attorney is looking for.

When I was a practicing attorney, I had a small probate matter with a modest home that needed to be appraised in order to be sold.  I contacted a local realtor, who was more than happy to help.  “Tom,” he said, “I want you to know that I’m going to appraise this property fairly.  My only question to you is:  Do you want it fairly high or fairly low?”

I knew this realtor well, and I knew that he was kidding.  But one has to wonder about many of the experts. 

Plaintiff’s attorneys are often criticized for contingent fee arrangements.  That is, if the plaintiff loses the case, he owes no attorneys fees, but if plaintiff wins, he pays his attorney a percentage of the recovery – often 1/3.

This type of arrangement can result in big paydays for the plaintiff’s attorney as well as their client.  But, on the other hand, it is the only way people of limited financial means can afford to retain an experienced and respected trial attorney to handle his claim.

Expert witnesses, on the other hand, are paid no matter what.  Attorney retainer agreements will provide that, while the unsuccessful plaintiff will owe no fees if they lose, the expenses will remain the obligation of the client.  As a practical matter, if the client doesn’t have the ability to pay, the attorney may end up paying those costs.

I had a lengthy products liability case over which I presided involving a major automobile manufacturer.  Plaintiff called six expert witnesses.  The Defendant called four.  Just ONE of the Defendant’s witnesses’ firms had been paid over $4 million from 1995 to 2002 to testify in similar cases for Defendant!

I wish there would be more attention paid to the very high fees often paid to expert witnesses when discussing lawsuit abuse.  I also wish I were wise enough to figure out how the parties could get the expert evidence they needed without being incurring huge expenses in the process. 

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Next Week:  Thanksgiving