What Lawyers Need To Know About
Health professionals look to specialists in particular disciplines like oncology or cardiology, and similarly, general contractors utilize civil engineers and architects. In the increasingly complex world of legal litigation, expert witnesses are an essential resource every lawyer needs. I spent more than 30 years working in the insurance industry as an independent agent and a public adjuster, therefore lawyers hire me as an expert witness in insurance-related litigation. This article will provide, particularly lawyers, some guidance when seeking the help of an expert.
The Expert’s Qualifications
When vetting a potential insurance expert, the lawyer should focus on the area of expertise required. Is the central issue a coverage dispute? Then ask the potential expert whether they have experience in drafting insurance policies or teaching policy subject matter as part of a recognized curriculum. For example, I teach insurance coverage to agents and other insurance professionals as a faculty member of a nationally recognized, accredited designation.
Drill down on the expert’s experience with the particular type of coverage involved. For example, if the issue involves a Homeowners Policy dispute, ask the expert how many homeowners applications he or she has written.
Does the issue run to whether an insurance agent or broker breached the Standard of Care? Then ask the potential expert about his or her practical experience working in those capacities. With regard to the Standard of Care, it helps if the expert knows how the Florida courts view the issue. I have seen testimony from some experts who promote an almost-perfect Standard. This may sound great when you represent the plaintiff against an agent or broker, yet the courts may not necessarily agree.
Other qualifications include the expert’s experience with trial testimony. Has the potential expert ever testified at trial? Has a judge ever disqualified that expert from testifying on any particular subject matter? Ask the expert about the outcome. Did his or her side win or lose?
Most experts have advanced degrees in insurance matters. Ask them about their educational credentials.
The Expert’s Bias (If Any)
Some experts have testified on behalf of the same insurance company several times. Others tend to work almost exclusively on plaintiffs’ or defendants’ cases. Before you engage an expert, ask for a current Curriculum Vitae that includes a brief description of the cases he or she has worked on. Be sure you are comfortable with the issue of whether the expert has a bias that could potentially harm your case.
Affidavits and Opinion Reports
Insurance companies often try to speed along the litigation process by filing Motions for Summary Judgment. In State court, an expert’s affidavit can be supportive to Memorandums in Opposition. In Federal Court, Rule 26(a)(2)(B) requires an expert to file an Opinion Report with the court. The lawyer should not necessarily decide that an expert cannot add value here.
Sometimes the interpretation of a “fact” can be disputed by having an expert frame the fact in light of industry standards and practices. For example, I recently wrote an affidavit that argued certain “Driver Exclusion Agreements” signed by the plaintiff should be part of the auto insurance application, where the insurance company argued differently. By making such a “standards and practices” argument about a material fact, the expert may help the judge see a reason to put the issue to a jury.
If the expert has written such affidavits or Opinion Reports, ask for a copy of one or two. These documents offer much insight into how the expert thinks and writes.
Testimony Under Oath
If you engage an expert’s services, eventually he or she will probably testify. The expert’s looks, grooming and demeanor can be an issue if the case actually goes to trial. If the expert cannot meet with you personally, ask if he or she has a website. Photos and videos can help the lawyer make a decision. Also ask for a few deposition transcripts. Some experts prepare extensively and deliver excellent testimony, while others tend to “wing it.” It’s easy to read a transcript to determine which type of expert you’re dealing with.
The Expert’s Rates
If you decide you like a particular expert, a discussion about hourly rates is inevitable. Each case is different. Regardless of your budget, if you engage an expert, be sure to provide him or her all relevant exhibits and deposition transcripts. Even well-prepared experts can be ambushed by information they aren’t aware of before they testify.
Michael P. Sapourn, Esq. spent 30 years in the insurance business and now litigates insurance claims as both a lawyer and an expert witness at The Law Offices of Michael Sapourn.