In the March 2013 issue of Plaintiff Magazine, Page 1, Thomas Stolpman reported that trial lawyers should start thinking about experts before the actual trial.
Some attorneys in California rush around to retain trial experts a few days before the expert designation is due under Code of Civil Procedure section 2034. This last minute hunt for experts may be detrimental in not getting the input experts can have during the earlier stages of the case.
In products liability, before spending significant money in a case, Stolpman said having an expert look at the product and give opinions about its design/ manufacture can be helpful in case selection and in formulating a strategy. Stolpman gave the example of a case he was working on where his office was suing on behalf of homeowners and residents for personal injuries and property damage arising out of the exposure to stray electricity and electromagnetic fields (EMFs). Prior to filing the lawsuit, his office engaged experts to assist in understanding the issue and in going through the holdings of appellate cases which appeared to foreclose claims of injury based on exposure to EMFs.
Stolpman wrote about experts helping him draft a complaint, and the complaint withstanding motions from the defense. In almost every case, the defense files a motion for summary judgment or summary adjudication. Stolpman reported experts are a resource for opposing motions for summary judgment and to prepare for mediations. Stolpman used as an example a medical malpractice case, where the healthcare provider files motions and attach a declaration which states the care and treatment rendered by the moving party was within the standard of care. This requires an opposing declaration by an expert opining the standard of care was violated in some specific way. For defendants, this is a method to evaluate where the plaintiff is going with the case. By having the expert address the issue of who complies with the standard of care, the trial attorney meets with the expert and prepares to take the depositions of the declarant whose testimony was filed by declaration in the motion.
In other cases such as construction site accidents, an expert may be helpful to find out what the good cases were and how to conduct the investigation and discovery. Stolpman wrote that the experts he dealt with were able to give him a roadmap to use during the discovery stage, especially when taking depositions of health-care professionals, including doctors, nurses and therapists. Experts assist in drafting discovery, such as requests and interrogatories. Experts assist in preparing for depositions.
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