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Introduction

Experts are a very important, and often critical, component of a lawsuit. Aside from all of the traditional elements and facets (Forensic Analysis & Testimony), is the litany of activities that the Expert may play in the initial role of Consultant to the Attorney.

Of course, the pursuit of litigation can be costly, and this may involve the Expert as well. However, while all litigation is fundamentally business pursuits, the litigation must be pursued in a manner to best insure the desired result.

Almost all lawsuits contain technicalities, which go beyond legal technicalities. Here we are talking about the technical aspects of injury mechanics, conduct, condition, or maintenance of premises, or the design and/or usage aspects of a product, or other.

To encourage a proper and technical analysis, a basis for all themes and theories, and for the beneficial and economic pursuit of a Case, it is best to retain the Expert in the early stages.

The Facets & Phases of a Personal Injury Case

In dealing with the subject of anticipating the best time to hire an Expert, let's first view a listing of the various facets of a Personal Injury Case.

For the purposes of this article, we segregate the whole process into the Main Elements; so as to best view where, when and how the Case (i.e. the Client) and the Attorney can benefit the most from hiring the Consultant / Expert.

GENERAL OUTLINE OF THE PHASES OF THE LITIGATION CYCLE

...and the ways in which the Expert can assist in each Phase

  • Understanding What Happened
  • The Expert is able to preliminarily evaluate the circumstances, and provide Overviews of many potential Case elements, similar to a Private Investigator, but with the added benefits of including evaluation of potential 3rd Party Defendants and applicable Codes, Regulations & Standards.

  • Preserving The Immediate Evidence
  • The credibility of the Attorney's Case is logically substantatively increased by the Consultant Expert examining the scene of the incident, recording photographs, making measurements, and the like.

  • Making Early Evaluations as to Liability Issues and/or Themes
  • From its prior work and experience, the Consultant / Expert can establish a foundation of the Codes, Standards, and Principal of Practices and assist the Attorney of what Liability Issues are involved and what Violations of Codes and/or Standards may be involved.

  • Assisting in Determining the 3rd Party Defendants, as well as Evaluating the Potential of other 3rd Party Defendants
  • The complexities of some operations (like Construction projects), can make it challenging to determine the correct 3rd Party Defendants, as well as others, that also have culpability.

  • Forming the Complaint, and Outlining the Parties and the Causes of Action
  • The Expert can assist with reviews of the draft Complaint, and seek to aid and assist so that the Statement of Issues and Causes of Complaint have the best likelihood of standing up as the Case proceeds.

  • Preparing for the Discovery Phase (Interrogatories, Depositions, Production of Documents)
  • The Expert assists in identifying question areas for Interrogatories, what documents and document types would be expected for a given Case, as well as assisting in identifying what Deponents may be able to provide the most information at the time of Deposition. This is particularly true when a Case deals with a subject matter that has particular and/or technical document and personnel types and titles.

  • Percipient Depositions
  • The Expert assists in identifying specific Categories of Question Areas for specific witnesses, based upon the overall facts of the Case and the anticipated knowledge and role of a given witness. The benefits of this consultation is further utilized in the Expert assisting with identification of specific technical questions.

  • Expert Depositions
  • Expert assists in question areas as to Opposing Experts, as well as Specific Technical or Expert related type questions. An area of potential benefit in utilizing an Expert in this capacity is to assist the Expert in developing potential rebuttal opinions, and/or better understanding the opinions expressed by the Opposing Expert.

  • Trial Preparation and Trial (Whether Jury or Bench Trial or Binding Arbitration)
  • Expert assists in the overall presentation of the Case through the development and use of Trial Graphics and Presentations, which are coordinated with the Client Attorney. Such graphical presentations are advantageous in explaining highly complex and technical issues in an easy to understand manner, as well as providing a consistent point of reference to be utilized throughout the presentation of the Case to the Trier of Fact.

  • Settlement
  • (With the ever present possibility of settlement, for which the value is most ordinarily enhanced when the Expert is engaged early.)

    Expert assists in development of Case Overview Outlines, which are essentially Preliminary Opinions that provide an overview of the Plaintiff or Defense (probable) arguments.

Conclusion

Every litigation Case is a unique combination of factors (i.e. Attorneys, parties, injuries, Case facts, theories of liability, etc.), and should be treated as such. With that said, the factors of benefits associated with the retention and usage of an Expert during the early stages of a Case are applicable to an incredibly wide variety of Case types and fact patterns.

Using an analogy from the realm of Construction, if the handling Attorney is the builder and the facts of the Case are the building materials, it can be said that an Expert serves in the role of the tools of the job. Using the right tools, and using them throughout the duration of the project is not the only way to get the building built, but it greatly increases the likelihood that the project will be completed in a cost and time efficient manner, and will help to ensure the best building possible.

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Dr. Stephen C. Wexler: 40 years experience in construction, construction management, safety and related. Unusual combination of safety engineering and construction and civil engineering permits separate areas within construction, safety, and premises liability. 6 years Instructor at UCLA Evening Extension in Engineering & Construction Management, and 4 years US Navy Seabees Instructor for Construction Management - Port Hueneme, CA and Gulfport, Mississippi.

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