In The Use of Expert Witnesses in Breach of Fiduciary Duty Cases, attorney Luke Lantta writes on allegations of undue influence and breach of fiduciary duty that arose in the trust case Sierra v. Williamson, W.D. Ky. Mr. Lantta discusses how the federal court qualifies experts in such cases.
Mr. Lantta is the founder and principal editor of BryanCaveFiduciaryLitigation.com, Bryan Cave’s legal blog focused on litigation that affects corporate and individual fiduciaries.
In Help! My New House Is Falling Down, architect Peter Lattey writes that uncovering construction defects requires an expert to discover the cause of damage.
Next comes the slightly tricky part. As a good lawyer, you need to have a construction defect expert that you can call on to help assess the issues of the case. This needs to be an expert who understands the two main areas of dispute in construction defect cases; construction contracts and the technical aspects of construction. The design and construction contracts define who is responsible for all aspects of the project, who approves the work, who pays for what and so forth. There are standard contracts available but these are not always used, and when they are used they are often not adhered to. This is especially true in small projects such as single family homes but can also be true of large commercial projects.
Construction today is a complex business. Even a single family home can have 20 or 30 trades installing different systems. When the systems are installed incorrectly they can interact in unexpected ways to create problems. Then the problems will need to be sorted out. This is no game for an amateur.
In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge Province of Nova Scotia, offers trial preparation guidelines including:
When testimony is finished, clarify status as witness.
It is the judge who permits the witness to leave the stand by excusing the witness. This means the witness is free to stay in the court or leave. The witness may however, be required to remain for further testimony or return as the court instructs. If the latter occurs and the witness has other matters to attend, the witness may explain this to the court and ask for another time to attend. The court may or may not grant the request.
In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge Province of Nova Scotia, offers trial preparation guidelines including:
Accept the unfamiliarity of testifying rules.
The main objections raised by counsel to expert testimony arise because of hearsay and a proper foundation for the opinions expressed. Objections may be to the question asked or the answer given. When an objection is raised, the witness should refrain from speaking until the court instructs otherwise. The witness should not attempt to justify comments unless asked to do so. The witness is not to respond to an objection, argue about comment or whether or not the evidence should be heard. After an objection is raised, the court rules on the objection and instructs counsel how to proceed.
In Seven Costly Mistakes Attorneys Make With Medical Negligence Cases, Dr. Burton Bentley of Elite Medical Experts LLC writes:
Although the rate of negligence claims against medical providers has begun to level off, the cost of litigating these actions has risen dramatically. Vast amounts of time and money are lost when attorneys – whether retained by plaintiff or defense – pursue a non-meritorious case or litigate a worthy case inefficiently. Beware of the following costly errors:
MISTAKE #1: FAILING TO THOROUGHLY ANALYZE A CASE BEFORE ACCEPTING IT.
Medical malpractice expert witnesses may consult on issues involving medical negligence, healthcare providers malpractice, and medical malpractice litigation. The American Academy of Pediatrics Committee on Medical Liability and Risk Management offers Guidelines for Expert Witness Testimony in Medical Malpractice Litigation on their website. The article includes discussion on standards of care, medical errors v. negligence, and more.
See: http://pediatrics.aappublications.org/content/109/5/974.full.
In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge Province of Nova Scotia, offers trial preparation guidelines including:
Guideline #12 – Answer only what is asked.
Be precise and do not offer gratuitous comments. Answer only what counsel or the court asks. If clarification or interpretation is needed, do so as necessary. It is better to acknowledge lack of expertise in a specific area than to risk misleading responses. Failure to acknowledge a possible second interpretation may result in a loss of credibility. Do not assume that counsel or the court are familiar with the profession, its descriptions and prescriptions. Assume that the evidence and the manner it is presented, will be assessed for validity and weighed against other evidence.
In The Emotionally Labile Client; Duties – When A Client Threatens Violence, Jeffrey Segal, MD, JD, FACS, et al. and Michael Sacopulos, JD, write on what happens when a client threatens violence. See http://www.medicaljustice.com/.
Published in Elon Law Review, 2012, Spring, pp55-70.
In Guidelines For The Expert Witness, Judge Timothy T. Daley, Family and Youth Court Judge Province of Nova Scotia, offers pretrial preparation guidelines including:
Attend by court ordered summons or subpoena only.
The expert witness attends court at the request of a party or by court summons or subpoena. The expert witness should consider being formally ordered to attend rather than attending voluntarily. There are advantages to attending by court order.
In Four Reasons Why The Location Of A Medical Expert Witness Is Becoming Less Important, Diane Manders of Mednick Associates writes:
The physical location of a medical expert witness, while in no way related to the competency of the witness, has always been a concern of attorneys litigating medical, health, toxic tort or injury cases. Conventional wisdom says the closer the expert is to the venue of a trial, the higher credibility they will have with a jury. Proximity, like it or not, tends to breed confidence and eliminates the question on why an attorney had to “go to the other side of the country” to prove his/her case.
However, as the world has grown smaller so has the potential stigma of an out of state or out of region medical expert witness.
Expert Witness Blog