Experts: Strategy For Cases With Hired Guns

— By John Merrick —

When it comes to experts, juries don’t care as much about “hired guns” as you might think. (Note: I am not criticizing hired guns. Both sides use them all the time. The key is to adapt.)

I recently tried a case with a defense expert who (1) made over $1m a year doing medical-legal work (i.e. being paid to review medical issues in legal cases and offer favorable opinions), (2) made nearly all of that money reviewing cases for the defense, (3) nearly always minimized the damages claimed by the plaintiff’s doctors and, (4) was hired by the same defense firm over 15 times in the last couple of years. As you might expect, he was smooth and skilled on the witness stand.

Every personal injury lawyer in Virginia (on both sides) would recognize this expert to be a hired gun. Meaning that, based on his extensive track record, this expert reliably interprets MRI’s, X-rays, physical exams and reported symptoms in a manner that favors the defense, for example, he routinely opines “this is an old injury, not from the accident” or “this slight protrusion could not possibly cause pressure on the spinal cord” or “this condition will heal on its own, without medical treatment” or “this condition does not require surgery” or “this condition does not cause the symptoms reported by the plaintiff.”  All these opinions strike at the heart of a plaintiff’s case.

After the trial I spoke to the jury foreman, and he confirmed that the jury did not put any weight on the expert’s apparent bias. Bottom line – the jury assumed this expert would not lie in court or offer “paid for” opinions, and that he simply had a different and more conservative opinion. I recall at least two other jury trials with similar feedback.

This feedback caused me to change my strategy when dealing with “hired guns”. I still cover all of these areas for impeachment, but I don’t make it the centerpiece of the case and I don’t expect the jury to decide an issue based on an expert’s bias alone. Instead, I try to hire better experts (no shame in this game), and/or acknowledge that opinions may differ while focusing on why my expert is more credible than the other expert (experience + civility / respect + calm demeanor + ability to communicate clearly = credibility).

I also emphasize the plaintiff’s (low) burden of proof – aka “what is more likely than not” – then connect the strongest dots to show how the evidence supports a finding that plaintiff’s version of events and claimed injuries is simply more probable that what the defense is suggesting.

When it doubt, whether it be experts, evidence, witnesses, strategy or closing arguments, get back to 30,000 feet and stay there.

If you have any questions about a case, call accident lawyer John Merrick at 804-464-7719

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