Expert witnesses: Balancing the scales of justice in personal injury claims

If you’re seriously injured in an accident, the last thing you need is to find the scales of justice tipped against you. 

That’s why injured people need expert witnesses weighing in on their side of the scales. In situations where you’re forced to sue, you can be sure the other side will muster a battery of experts, with an array of charts and tables, to try to discredit your case.

No matter how clearly you may feel that the facts “speak for themselves” and support your version of events, the opposing insurance company will have experts with well-honed counter-arguments. After all, the insurance company may have dozens or even hundreds of claims that could be affected by the outcome of your legal action. And they also benefit from anything they can do to generally discourage others from filing suit.

Insurers’ use of expert witnesses

In the simplest case, the opposition might put forward an accident reconstruction expert to say the collision didn’t generate enough force to cause a serious injury or to attempt to demonstrate that the accident was really your fault. There might be a medical expert to say your ongoing disability is the result of a 10-year-old skiing injury, not the actions of the at-fault driver or negligent homeowner. Or there might be an economist to chip away at the estimated costs of ongoing disability or lost income. Frequently, three or more experts may be employed to challenge a personal-injury claimant.

Expert witnesses – claimant side

You wouldn’t go into court without a carefully-chosen personal injury lawyer. Similarly, your lawyer shouldn’t take your case to trial — or a settlement conference — without securing the testimony of highly-qualified and well-respected experts to support your claim.

The opposing insurance company will be represented by lawyers whose only job is to defend against suits by injured people and who are consequently very proficient in their field. They will also have an established stable of technical experts who are accomplished courtroom presenters. Your lawyer needs to be equally experienced and he or she needs to know a wide array of experts who are skilled in presenting essential facts to the court. Additionally, your lawyer needs to be capable of choosing specialists whose fields of expertise precisely apply to the facts of your case.

Expertise alone not sufficient

In selecting an expert, your lawyer must bear in mind that, under Canadian law, the role of the expert witness is to assist the court in understanding the facts of the case, not to advocate for one side or the other. Accordingly, the best expert witness is one who can present the facts in a dispassionate and scientifically credible fashion, so that he or she does not come across as a mere “hired gun.” If the testimony of an expert appears biased a judge may rule it inadmissible and order the jury to disregard it.

The expert witness must also be capable of maintaining a professional demeanor and personal composure under intense cross-examination by opposing counsel. An expert who loses his or her temper under attack will, to an equal degree, lose credibility in court.

Managing witness credibility

Of course, it’s in the best interests of the opposing side to discredit your expert witnesses by any means available. This means your lawyer must do very careful background checks to eliminate experts with weaknesses, such as an unfavourable peer review in a scientific journal. Alternatively, if a truly excellent expert witness has some flaw on his or her record, your lawyer may choose to disarm opposing counsel by revealing the issue on direct examination and inviting the expert to explain it.

Assessing ‘unseen’ factors in injury claims

Some injuries and resulting issues are harder than others to present to a court. While broken bones can be seen on x-rays, nerve damage may be invisible and the resulting pain can’t be measured. Similarly, costs of treatment can be hard to quantify. Medical experts can help the court to understand the realities of these issues and the associated expenses. In the same way, mental health specialists can establish the impacts of emotional trauma and mental anguish, while medical economists can speak to treatment costs and lost earning capacity.

In some cases, the underlying cause of an injury accident may be a defective product, such as the brakes on a car. This may require the testimony of an industrial process engineer or product liability expert and, in some cases, the essential expertise may not be found in Canada.

Impact of expert testimony in contingency cases

Often, the considerable costs of a personal injury trial — including expert witnesses —require a law firm to take the case on contingency, meaning that the firm agrees to assume the up-front costs of litigation and to recover costs and legal fees from any judgment awarded to the client. This reality means that you must be confident your chosen lawyer, and the law firm, are sufficiently well-established to take on the financial burden of the case.

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