Winning Your Lawsuit–the importance of expert witnesses

30 06 2011

By: Aaron Shechet

As we mentioned in our article “Winning Your Lawsuit—understanding litigation” (here or here), evidence is the primary focus of a lawsuit. In “Winning Your Lawsuit,” we focused on the discovery process, where you exchange evidence, or avoid exchanging evidence, with the other party. Here, I want to talk about the next step: explaining your evidence to a judge or jury.

While the value of some evidence is obvious – for instance, a signed contract regarding the subject matter of the dispute – other evidence requires explanation. For example, your opponent may claim that the signature on your contract is a forgery. In that case, someone needs to analyze the signature and provide an opinion as to its authenticity. Some cases turn on scientific or medical evidence which requires explanation. Other disputes require an expert witness simply because the central issues are confusing or unsettled. For example, I served as an expert witness to testify about true retainers in a lawsuit by music producer Phil Spector against his lawyer Robert Shapiro. This issue isn’t scientific or technical, but it is the subject of much disagreement in the legal community.

In California, the evidence code prohibits laypersons from giving opinions about anything requiring special qualification, so you can’t have just any witness explain issues like these to the jury. In situations like these, you need an expert witness. An expert witness is exactly that – an expert in a specific field who will give an opinion about something that most people are not qualified to testify about. After all, if someone does not have special training to identify forged signatures, their opinion about a signature is little more than a guess. It is not evidence.

Whether you need to hire an expert witness depends on your case. Qualified experts are expensive, and may need to spend a lot of time preparing for your case, answering questions at a deposition, and testifying at trial. But in some cases, an expert witness is vital.

Winning Your Lawsuit–understanding litigation

28 06 2011

We have found a lot of people misunderstand the process of a lawsuit.  They seem to believe that lawyer A files “something,” then lawyer B files “something,” then everyone goes in front of a jury at which point lawyer A screams, then lawyer B screams and the lawyer who is “better” wins their client a lot of money.  This misunderstanding probably arises from television portrayals of lawsuits as quick events.

In order to “win” a lawsuit, the first step is to understand what the process and goal of a lawsuit is.

In short, a lawsuit is an attempt to get a judgment in order to force another party to do, or not do, something.  The most common goal is to force another party to pay money for damage that their actions have caused.  But it is very expensive to win a lawsuit, so the cost of winning should, ideally, be far less than the amount at stake.  If you are defending a lawsuit, the goal should be to get it dismissed with the least possible cost.

But why is it so expensive?  A lawsuit is not a one-day screaming match.  Although a trial might, depending on the case, only last for one-day, in order to “win” you need evidence.  The first thing to ask yourself before embarking on a lawsuit is “what evidence do I have in my possession to prove my case?”  The second thing to ask yourself is “what evidence will I need to get from the other side to prove my case?” These questions are important because both sides will have months, often stretching into years, to conduct “discovery,” which is the process of getting evidence from the other side.

Too often, the evidence that you need—documents, testimony, the identity of witnesses – is in the hands of your opponent and they won’t turn it over without a fight.  If you understand that the main driver of a lawsuit is gathering and protecting evidence, then you will have a better understanding of the nature of litigation and you will make your lawyer’s job easier.  That is, you will be in a better position to win.