The Importance of Experts in Litigation
When people hear “expert witness,” they may think about shows like CSI, where a scientist can evaluate things like blood samples or DNA to determine who committed the crime. While expert witnesses certainly play an important role in some criminal matters, expert witnesses can be vital to the outcome of civil cases. This article explores the importance of experts in civil litigation.
Washington’s Civil Rules allow parties to retain otherwise disinterested individuals to provide expert opinions in anticipation of litigation or for trial. The threshold standard for expert opinions is set forth in Washington’s Evidence Rules: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” ER 702. Experts can base their opinions on facts and data “of a type reasonably relied upon by experts in the particular field,” even if the facts or data would not be admissible in evidence. ER 703. Although experts are prohibited from offering legal conclusions, expert testimony “in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” ER 704.
Due to the great impact expert testimony can have in a case, the admissibility of expert opinions is often disputed. Experts can generally tell juries about their impressive resumes and backgrounds, which can sometimes create an inherent trust regarding the expert’s opinions. Furthermore, experts can talk about complex matters in a way that makes sense to people with no knowledge about the topic the expert is testifying about. In combination with explaining complex matters in an easily digestible manner, experts can use maps, videos, and other visual aides to drive their opinions home. Simply put, having a good expert testify can be the difference between winning and losing a case.
Deciding whether an expert is necessary and, if so, what expert(s) to retain is a key decision to make in civil litigation. Not every case requires an expert. However, in some cases, having an expert is imperative. Most cases fall somewhere between the “must have” and “not necessary” lines. A hypothetical assists in understanding the importance of experts.
Suppose John owns a home constructed in the 1950s. For decades, the neighboring parcel has sat vacant. Bob purchases the vacant parcel and hires a contractor to construct a home on the previously vacant parcel. After construction is completed, John notices cracks in his driveway, finds that certain doors are harder to close, and sees a void between the floor and wall forming in the kitchen. While John naturally wants to point the finger at Bob and Bob’s contractor, simply asserting liability based on even a logical inference may not lead to a victory for John in a lawsuit. Hypothetically, Bob and his contractor could raise defenses based on the age of John’s home and potential wear and tear or natural deterioration over time. Bob and his contractor could also argue that they complied with all laws, codes, and ordinances during construction, and therefore face no liability from a legal standpoint. Opting not to hire an expert could turn out to be a costly mistake for John, even though John has a logical basis to assert liability on the part of Bob and his contractor.
But if John retains a geotechnical engineer to serve as an expert, the geotechnical engineer can explain the complex concept of how construction activities on a neighboring lot can cause surrounding homes to settle unless certain precautions are taken. The geotechnical engineer can highlight what Bob and his contractor did, but more importantly, failed to do, during the construction process, using studies, articles, etc. to bolster the bases for his opinions. Furthermore, the geotechnical engineer can offer opinions regarding why the damage that John has noticed is consistent with construction activities on the vacant lot, and inconsistent with any defenses Bob and his contractor may raise. Therefore, John is much better off with than without an expert.
While the above hypothetical highlights a geotechnical engineer, experts come from a variety of fields. Forensic accounts are often retained in cases where business valuation and/or damages are at issue. Real estate professionals can be retained in cases involving alleged professional negligence by a broker. Architects can be retained in construction cases. No matter what the issue is, an attorney can typically find someone to serve as an expert.
Aside from determining whether an expert is necessary, another important factor to consider is cost. Experts can be expensive. Most experts charge an hourly rate, ranging from anywhere between less than $100/hour to over $1,000/hour. Some will require a retainer. Though expensive, having a good expert can pay dividends when it comes to time for settlement or trial.
Whether to retain an expert, and if so, who to retain, can represent one of the most important decisions in a case. The lawyers at Beresford Booth have great experience advising clients who are facing, or are already in, litigation. We are available to discuss your specific situation. Do not hesitate to please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
