What do you want in a
LEGAL MALPRACTICE EXPERT WITNESS ?

Why use an expert witness? For a plaintiff to prevail in most legal malpractice cases, an expert must testify that the defendant-attorney was negligent. For the defendant to prevail in most legal malpractice cases, an expert  must testify that the defendant-attorney was not negligent. If the defense does not have an independent expert witness testify,  the jury may infer that there is no support for the defense position

What is the prime qualification of an expert that the jury (and other side) will respect?   An expert witness attorney is a teacher.  He/she must lay the foundation for the jurors to be able to understand the reasons why actions must be taken or avoided.  And that foundation must be expressed with clarity. So what you want is an expert - who can express -- with clarity -- the reasons behind his/her conclusion.

To express that rational foundation with clarity needs two things:

1.    the trial attorney must ask the proper questions, so that the expert can testify and tell the jury what it needs to know.

2.     the expert witness must understand the courtroom dynamic,
    and be an expert in communicating in the courtroom.

You usually need an expert witness who can express not only whether there was or was not negligence, but also who can express whether the underlying matter would have resulted in a favorable result, and whether the underlying matter had settlement value.  This need arises from the legal fact that: in malpractice claims usually plaintiff must prove, "a case within a case." The "case within a case" question is whether the underlying matter (if properly handled) would have resulted in a favorable result for the legal malpractice plaintiff.

Choose an expert attorney who has the courtroom experience to correctly state the foundation of his/her opinion under Daubert style tests or other evidence rule foundation tests. The gatekeeper functions that judges now exercise mandate an expert who understands the significance of Daubert style motions to exclude expert testimony and the information that should be presented to keep the opinion in evidence..

• It is now critical to retain an expert who can meet the Daubert-Joiner-Kumho style objections to expert testimony. 
• Read about that indispensable aspect of choosing an expert.
• Read about the  aspects of a malpractice case on which a good expert may be able to give testimony in your case. (Some attorneys forget at least two!)

What you always want as a witness is an attorney with credibility and experience.  In the "battle of the experts", the jury will weigh the relative credentials of the opposing experts, so the content of the expert's professional resume is always important.

What is it important that the expert know about writing his/her expert report?  A short list:

• The date to write a report

• Legal requirements regarding Rule 26 expert reports and reports used in summary judgment motions.

• How to express factual assumptions

• How to state opinions and conclusions

• Avoiding vague, equivocal and uncertain reports and opinions

• The importance of research 

• Properly disclosing documents reviewed

• Preparing and disclosing visual aids to be used in testimony.  

Don't hire an expert for both advice on handling the case and also testifying.  An expert who acts both as a consultant and a witness knows strategic information which is discoverable. When the expert's deposition is taken and he/she is asked to disclose everything that has been discussed with the retaining attorney --- you lose information you gave the expert about other aspects of the case than his/her opinion.

What information should the legal malpractice expert witness be given in preparation for his or her testimony? As with other experts, nothing should be contained in a writing that the trial lawyer would not want the jury to see.

How do you save money in asking for an expert's opinion? Save the expert's time and your money by preparing a chronology time line of events with pertinent documents.   And organize what you send the expert, so his/her time is not wasted sorting and finding out what is there.

When should you hire an expert? The use of experts is greatly enhanced by early retention of the expert.  Early retention may avoid unnecessary costs of proceeding with a case that is not viable.  And early retention allows you to time to get information that the expert requests.  (In other words, do not let the time for discovery run out before the expert's opinion is needed.)

Important Advice on Taking the Other Side's Expert's Deposition.  When taking the other side's expert's deposition, bring your own expert with you. In that case. Should you miss asking important questions or need to follow up on certain lines of inquiry, you at least would have your own expert there to give you advice and counseling on what your expert needs or wants to have.  Your expert also will be then a stronger witness in your case, as a result of seeing and hearing the adverse expert.