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The Expertpays Rule: When Do You Need An Expert Witness?

WATCH VIDEO
Author: Gerard Dondero
Date: 04.06.2020 Time to read: 11 min

“If you can’t explain it to a six year old, you don’t understand it.” Richard Feynman.

In Brief

Lawyers and expert witnesses alike underestimate a juror’s ability to process expert testimony, with experts themselves believing that jurors only value attractiveness, confidence, and demeanor.

To the contrary, jurors respond most to expert testimony that is clear, which serves the purpose of said testimony: making the complicated, simple. The expert simplifies facts and allows the juror to apply commonsense principles to those facts.

As such, the expert witness can be the hammer to the defense’s nail. He or she is the only witness who can both (1) lack personal knowledge of facts they testify to and (2) offer an opinion on those facts. Indeed, because of the unique privileges inherent to expert testimony, the history of experts in the common law is the history of how to properly determine who is qualified to offer this testimony.

Courts qualify individuals with specialized knowledge that will assist the juror with interpreting the facts as experts. Consequently, cases need experts whenever a juror will need help interpreting a set of facts. Determining which sets of facts require an expert’s interpretative help can be a daunting task.

Fortunately, Expertpays has a helpful rule to determine whether an attorney needs an expert: if an average person doesn’t know, you need an expert to show. So; testimony on the standard of care for complicated occupations, societal relationships, technology, and damages, generally.

Unfortunately, experts cost a lot for the law firms funding their testimony. And the future of modern litigation, steeped in scientific culture, lies with expert testimony. Indeed, some sources refer to modern lawsuits simply as a ‘battle of the experts.’ Another source refers to the proliferation of expert testimony as an “arms race.” You need expert testimony more often than you may believe, and Expertpays allows you to get what you need without breaking the bank.

At Length

Determining if you need an expert should start with the history and function of a trial itself. A trial is meant to do two things: (1) take some set of facts and (2) make an inference about the dispute at hand from those facts. Before we get to how the jury trial attempts to tackle (1) and (2), consider the previous methods of trials and theories the common law allowed for.

The Historical Rise of Reason In The Law

There were three primary methods that courts utilized to resolve disputes that differed from the jury trial. Settling a dispute requires a consensus about whichever result the process produces. There are many methods --- other than “reason,” to settle disputes. Appeals to authority, social proof, might makes right are a few examples: the following trials reflect reliance on one or more of the listed sources of consensus. So, rather than casting judgment on these methods, it is best to use the examples as helpful reminders of the difficulty involved in dispute resolution and how legal institutions rely on consensus reality.

Trial by Witnesses --- a party simply produced a certain number of people to fill out an oath swearing to his story, and in Law Wager a defendant merely produced the same, and if the defendant produced a certain number of oaths, he won.

This method was abolished by England in 1833. Both seem more like trial by petition or popularity --- the principle behind (2) the inference is “whoever is more popular, is right about what happened.”

 Trial by combat --- more than a physical battle between plaintiff and defendant, but a battle between good and evil with providence obviously intervening on behalf of good (the winner). Incidentally, trial by battle/combat may still be legal in the United States, via state statutes incorporating the entirety of English Common Law.

It was only abolished by England in 1819. The principle behind (2) is the inference that “whoever is stronger must be correct under the law.” However, in practice, a squire assisted the combatant and negotiated disputes regarding the coming match, which led to the practice of attorneys representing litigants.

Trial by ordeal --- this insanity method involved some gruelling feat, like walking slowly over hot coals, and if the accused emerged ‘unharmed,’ their innocence was manifest. Ostensibly, harm meant guilt. Thankfully, England abolished this practice in 1219.

The principle behind (2) is that whomever chance favors must be correct under the law --- or, more likely, because both defendants and plaintiffs at this time believed in the divine, only those who were guilty would refuse to undertake an ordeal (the high exoneration rate in ordeals, despite the fact that everyone who holds a hot rod will suffer burns, suggests as much).

Last, trial by jury of one’s peers. The jury trial evolved from the king summoning “freemen” to independently investigate the facts of a particular case and come to a conclusion --- essentially rounding up town gossip:

These early juries were not the juries we know today; rather they were bodies of neighbors, already acquainted with the facts or capable of discovering them easily, who partook of the character of witnesses as much as of judges. There was then no settled practice of adducing information by means of sworn testimony of witnesses; "how a jury came by its knowledge was not originally a matter with which the law concerned itself."' This practice was not general until the 16th century when the distinction between witnesses and jurors was becoming clear.

But, with the rise of the scientific method in philosophy society began to believe that one could deduce objective truth. God and magic began to leave the courtroom as faith in reason spurred the “adversarial revolution.”

And so, the jury trial morphed over time to a gathering of laypeople in the community to judge the facts in question. The common law takes care of (1) establishing what is a “fact,” with the rules of evidence. Then, (2) the inference is that “whoever reasonably was in the right” wins, with laypeople making reasonable inferences from the facts.

So, a layperson applies some general principle of logic to the facts, then makes an inference regarding how to best interpret those facts. Generally, we see this faith in reason as an improvement over faith in social proof, violence, and providence.

But, the spear of the law in the hands of laypeople is still controversial.

[T]he new paternalists have scored impressive rhetorical victories over their adversaries. One such rhetorical victory has been their fight against the American jury system, waged in symposiums, books, and articles over the last few years. Defenders of the jury have unwisely allowed themselves to join the hyper-complex, hyper-technical debate about juror rationality. In this debate, the jury’s defenders have been overwhelmed by a rush of studies demonstrating that jurors, like the rest of society, are imprecise decision makers.

There is a widespread (though empirically inaccurate) perception among lawyers and judges that lay juries simply are unable to understand legal issues of great complexity, even in the presence of expert testimony.

Evidence as a Matter of Principle

This suspicion speaks to the still strong faith we place in reason, but we know laypeople have limitations. Evidence is first and foremost relational. Many legal scholars even believe that Federal Rule of Evidence 401 is redundant to define “relevant evidence.”

To say that testimony is not pertinent, is to say that it is foreign to the case, has no connection with it, and does not serve to prove the fact in question; in a word, it is to say, that it is not evidence. All evidence, according to this view, is relevant.

Indeed, the view makes sense, because to serve as evidence fact X must relate to fact Y, which is what allows reasonably infer that fact Y is true. As one source puts it: "the problem of legal proof is nothing more -than a particular aspect of the universal problem of drawing valid inferences from data."

Most facts in the world bear an obvious relation to other facts. For example, the fact that it is noon allows one to infer --- without looking --- that the sun is out, or even that the sun sits directly overhead.

This general rule admits exceptions, but few would argue that the inference is unreasonable. And the relation between these facts rests on a general principle regarding when daylight begins and ends, as does the relation between most facts.

The relation between certain facts, however, can be inscrutable. That an airplane’s engines failed midflight unclearly relates to the weather, the engines, the design of the plane, and a cache of other variables. The lack of an apparent lexicon of guiding principles renders us unable to relate these facts to one another.

Accordingly, we view this ignorance of the principles that operate behind facts as fatal to the adversarial system’s function (thought some jury defenders consider such conceptions of and appeals to rationality as red herring). After all, the correct application of reason requires an understanding both of facts and of general logical principles underlying those facts. Therefore, the system must exert great care in ensuring that its jurors can correctly apply reason.

Having moved past first principles, we must find an authoritative guideline for what facts and logical principles require an expert to explain.

The Expertpays Rule to Litigate By

While jurisdictions vary, most view the federal rules --- whether for civil procedure or for evidence --- as persuasive guidance. Accordingly, Federal Rule of Evidence 702 explains that expert testimony is appropriate when “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

The 2000 amendment to Federal Rule of Evidence 701 elaborates that lay testimony “results from a process of reasoning familiar in everyday life,” while expert testimony “results from a process of reasoning which can be mastered only by specialists in the field.” Put simply: the expert acts as a thinking cap for the average juror, extending their ability to apply reason and infer from a set of facts.

Accordingly, the Expertpays rule is that if the average person (most without a Bachelor’s Degree circa 2019 according to the United States Census Bureau) would be unfamiliar with the subject matter, an expert is necessary: if the average person doesn’t know, you need an expert to show. Multiple sources agree.

A word of caution here is that most experts fail to do what lawyers hire them to do: make the complicated, simple. While expert witnesses, lawyers, and even commentators believe that jurors use bias to evaluate expert testimony, jurors tend to respond to experts who have stellar credentials, draw firm conclusions, and give clear concise explanations of complex situations.

Given the foregoing history of the jury trial, the limitations we all have in our knowledge, and the need for simple answers to complex questions, experts serve a vital role in the legal system.

You Need An Expert To Show The Standard of Care

The existence of a duty is a matter of law, decided solely by the judge. But, the standard of care ---- whether the individual in question fulfilled this duty --- is a matter of fact. Matters of fact are for the jury to decide. The question is always whether a reasonable owner/doctor/employer/etc. would have caused this situation to occur.

But a layperson is without the specialized knowledge to evaluate what constitutes reasonable conduct from owners, doctors, manufacturers, or any myriad of individuals operating in different occupational capacities. Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239; see Sanchez v. Brooke (2012) 204 Cal.App.4th 126, 127. Therefore, an expert in each respective field turns complicated facts into simple opinions that a juror may analyze.

You Need An Expert To Prove Damages

However, attorneys often overlook expert testimony for damages --- which can make or break the entire case. As the ABA states, “[d]amages experts can help tie a defendant’s conduct to economic harm and distill complicated economic concepts into jury-friendly soundbites.” Many cases have gone awry where an attorney won the battle of liability only to lose the war by failing to sufficiently prove damages.

Experts are necessary to prove several facets of damages:

  • Past Income
  • Future Income
  • Present Cash Value
  • Inflation Effect On Damages Awards
  • Lost Profits
  • Value of Particular Assets
  • Value of Services
  • Disability and Disfigurement
  • Permanency of Injuries
  • Likelihood of Future Pain and Suffering
  • Matters Relevant to Punitive Damages Awards

At bottom, damages are about showing how this money compensates for this injury. For example, the average person is ignorant of how to monetarily compensate a knee injury that requires a lifetime of maintenance and care. The life care plan, in conjunction with the vocational assessment and economist report, allows a juror to understand these facts and link money to the injury.

You Need To Retain An Expert Early

Apart from you needing an expert, you need to retain an expert earlier rather than later. Early retention ensures that you can properly vet your expert and familiarize yourself with their process and their analysis of your case. One large law firm even lists the early hiring of experts (retaining them all pre-litigation) as a way for a plaintiffs’ firm to maintain an edge in a case.

Experts Are Almost Always Needed But Cost Too Much Up Front

Litigation and discovery costs --- despite rumors to the contrary --- tend to be proportionate to the money at stake.

But, as a well-respected personal injury attorney put it: “…[i]n some cases, [experts] can cost as much as six-figure money, hundreds of thousands of dollars for expert witnesses in any given case. In other cases, expert witnesses can be controlled and their expenses controlled so that the value of the case doesn’t get consumed by paying the expert witnesses."

So even though experts are so needed that “[t]he most cautious approach may be to err on the side of getting an expert…the cost of retaining an expert can be prohibitive,” according to the Expert Institute.

Of course, the high cost of expert testimony is nothing new --- in fact, sources from over a decade ago cited expert testimony as a key cost to control in litigation.

And sources predict that expert costs will continue to rise. Nearly half of experts have raised or are planning to raise their rates as of 2018. The average hourly fee rate jumped 7.6% from 2017 to 2018, far ahead of inflation.

However, the greatest uptick in the trend comes from early costs --- retainers and the increasing amount and requirement of a retainer --- rather than the hourly rates experts charge. Between 2009 and 2014, there are three key observations:

  • The average retainer amount increased nearly 20 percent.
  • Two thirds of experts raised their rates and found it to be a “good decision.”

Moreover, experts who do plaintiffs’ work are significantly more likely to require a retainer. So, it is easy to see that expert testimony is a major factor affecting how much Plaintiffs’ firms cases cost. Even in automobile tort cases, experts take up a significant fraction of total costs. And in intellectual property litigation, expert fees are the second highest cost of litigation.

 The astronomical cost tends to shock the public, but it is nothing new or surprising for lawyers.

Courts have been on this beat for decades now: “the [c]ontinuing escalation of expert witness fees and the all too frequent attitude of experts that their fees should be set at the maximum-the-traffic-willbear is of great concern.” Jochims v. Isuzu Motors Ltd., 141 F.R.D. 493, 497 (S.D. Iowa 1992).  One court simply believed that rising expert fees were “attempts to loot the system.” Anthony v. Abbott Labs., 106 F.R.D. 461, 465 (D.R.I. 1985).

Paying Up Front Is Costing Attorneys Time, Energy, and Money

Attorneys deal with high expert costs in a myriad of ways. One method is re-organizing firm time around expert schedules and another is taking firm time to carefully select and vet experts. Another still is simply avoiding experts altogether and relying on supreme legal acumen to carry the day. Lastly, firms cost-shift to the other side where applicable and allowed by law.

All the above strategies perhaps save dollars but eat at a law firm’s productivity and time. Indeed, the average search for an expert takes 3 entire days of law firm time!

The Future of Litigation is Expert Testimony

Over the last 5 years, 34% of attorneys reported that they used expert testimony more often, while only 11% reported that they used it less often. Almost a third of attorneys use experts on more than 70% of their cases. Almost half of attorneys hire more than one expert. Indeed, even courts are taking notice:

 The demand for expert testimony by litigants has become insatiable. In response, an astounding number of "expert" consultants and professional witnesses in virtually every field of human endeavor have arrived on the scene. Their proliferation, to borrow Justice Cardozo's felicitous phrase, ‘would make Malthus stand aghast.’

 Loeffel Steel Products, Inc. v. Delta Brands, Inc., 372 F. Supp. 2d 1104 (N.D. Ill. 2005).

Expertpays Sets A New Trend: No More Up Front Cost

Expertpays brings experts to cases without any up front cost. No more retainer paid up front, no more money advanced for the initial reports. Pay for it at the end of the case so that you can get the expert early, get settled faster, and get more money. Moreover, no more spending endless amounts of time searching for experts --- we bring them to you! We make the Expertpays Rule profitable. More importantly, we make sure that experts can serve their historical purpose --- to ensure that properly applied reason decides the outcome of a case, rather than personal biases of all types.

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