This is never a problem in medical malpractice cases, because it is well understood that medical malpractice claims are predicated on expert testimony, to even bring forth a claim in the first place. But lawyers — both Plaintiffs’ lawyers and defense attorneys — typically wait too long.
How do you know whether or not you need an expert? Investigate. Early. Do you have a problem with speed, with drinking, with highway design, or with a “dangerous condition?” You will not know if you have any of these problems, without investigating your claims properly.
But when you discover these issues, you have to act fast. If the issue is speed, you need your accident reconstructionist involved early. Skid marks fade or wash away, and vehicle damage is repaired. Photos are not always enough, if the depth of a dent, the gear a car locked into at impact, or the length of a skid is at issue. Black box data needs to be preserved before it is lost or destroyed. Dents get fixed, cars are sold for salvage, and you can’t measure a photograph (at least not without an argument). The design of the road could be changed, or lights and lane markings can be moved. Once the truck with the improperly secured load is taken away without being photographed, you can’t get that evidence back. After this happens, you can’t undo the damage to your case. But once you lock the important facts in, with an early expert investigation, there isn’t anything the other side can do to make that evidence go away.
Personal injury lawyers often think liability “is what it is” and cannot be improved upon. But liability does not spring doe-like form behind a bush somewhere — it is made. I am not saying it must be invented, but sometimes it must be discovered. Liability is not always crystal clear on every accident. An expert may be necessary to determine how things happened. You must work for your client in coming up with the best theory possible that works. Give your client the greatest possible number of viable defendants; that your expert can realistically testify to, and that you can uphold and prove at trial.
One of the great benefits of being a Plaintiff — we say it all the time in my office — is the ability to load the guy before firing it. Don’t fall into the trap of overlooking the beneficial impact. Early involvement of an expert can help build your case for damages and help your secure the most favorable settlement possible. Lock in what you expect your medical experts to testify to before filing suit. It may be that you can glean some of this information from the doctor’s treatment notes. It is most likely that you can’t get everything you need though, because doctor’s treatment notes are made for a very different purpose than which they are used for in the context of settling a potential litigation claim. You need to know if a low offer is rejected, because the medical witness will give testimony that is likely support a claim for higher damages at trial. On the flip side, you also need to know if you should take that low offer, because the client’s doctor is going to say the bulk of his problems are from a prior injury or a degenerative condition. The point is, if you will need an expert to try the case, you probably need to locate and involve the same expert on the front end to properly settle the case.
When You Don’t Need an Expert
Don’t get an expert if the size of the case does not warrant an expert. If you have a $50,000 case, you cannot spend $10,000 on an expert. I’ve seen cases where the Plaintiffs’ attorney hired an expert where it made sense in theory to get the expert, the size of the case clearly did not warrant the expense.
The same logic holds true for when to contact an expert. If you think an expert report is going to be a game changer for settlement, by all means, use the expert and his or her opinion to bolster your demand package. But even in mid-sized cases, I’m hesitant to do this, just because you don’t want to spend that money and settle the case with an opinion that had no meaningful impact on the settlement offer.