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Expert Witness Fitness and Gym & Fitness Injuries

By March 1, 2017Blog

Expert Witness Fitness gym Injuries

An expert is a person with specialized knowledge, skill, experience, training, or education which qualifies that person to form helpful opinions for a party in anticipation for litigation or preparation for trial. The court must find, however, in addition to the expert’s qualifications, that the opinion evidence will be relevant to the issues in the case, that it is reliable, and that it will be helpful to the trier of fact.

It is the specialized knowledge or skill, or other attribute listed above, which permits a person to form and offer opinion evidence, rather than fact evidence, and it is the ability to offer opinion testimony which distinguishes the expert witness from fact witnesses.

MISTAKE #1 – Relying only upon information provided 

The attorney is an advocate for his or her client’s position and legal rights and remedies. The expert is not. Do not try to be a lawyer, listen and just stick to the opinion to which you were hired.

It is the expert’s first responsibility, therefore, to ensure that he or she has a full knowledge of all the underlying facts (at the very least those which impact the area of the opinion solicited) and full access to all relevant records. As an expert always do you own private investigation to help discovery more information to help justify the opinion. However do not involve any of the parties in the suit.

MISTAKE #2 – Forgetting That You Are an Advocate Only for Your Own Opinions, and Your Methodology, but not for the Case Itself. I am not a lawyer, and I don’t pretend to be. 

Expert witnesses are much like fact witnesses in one respect: each one should tell the truth, simply, directly, and with sincerity.

An expert witness must be objective. The jury will quickly detect any specialized agenda the expert may have, and the expert’s credibility is directly proportional to the extent of the jury’s belief, i.e. its perception, in his or her objectivity. An objective expert views all facts and underlying data unemotionally and without regard to how the client or attorney wants them viewed. The attorney is an advocate; it is his job to take a side and argue it with passion and conviction (within the parameters of factual reality and legal precedent). It is not the expert’s job to be an advocate for the client, only for the objective truth. Trying to fit an opinion into a preconceived objective or goal will be the death knell of the expert’s credibility, and, therefore, the case.

MISTAKE #3 – Putting Too Much in Writing, Too Soon, and Too Casually.

We are living in the age of discovery, the process of forcing the other side (including experts) to divulge every fact and thought about a lawsuit long before the dispute ever sees the inside of a courtroom. In discovery, there is one fundamental rule: if it’s in writing, it can be had.
Expert witnesses are, not surprisingly, real people…just like lawyers and clients. Without an extreme amount of discipline and self-denial, we all have a tendency today to send a quick e mail, or maybe a “memo,” instead of picking up the telephone and calling, to discuss a point or make a statement or reveal a doubt or weakness about a position. And things written leave records for all the world to see. Think twice before you jump and email haphazardly…get you facts right!

Generally speaking, in the world of expert witnesses there are several types of writings. For example, there are “reports,” there are drafts of reports, there is correspondence, there is electronic mail, there are memos, and there are personal notes (which may be in a notebook, on a napkin, on a desk calendar or “Day Timer,” or even on the old fashioned sheet of paper). And, what is the rule? Right. “If it’s in writing, it can be had.”

My practice, and strong preference, is that if a report is not required, do not do one. If you do not do one, it cannot be discovered. Only the court, by direct order or by inserting the requirement in a case scheduling order, can make the expert prepare a written report.

But, a “report” may not be just the formal document, prepared (hopefully) and signed by the expert and intended to be the expert’s final work product, including an expression of opinions to be submitted in the case. A “report” may be any written communication between the expert and the attorney in which the expert expresses his or her opinions, even in preliminary form. And, it can be (and nowadays very often is ) contained in electronic mail. Furthermore, for some strange reason, we seem to have a tendency to put things in electronic mail that we would never dream of putting in “real” writing. Everything from bad jokes to scandalous commentary…everything. We simply act like it isn’t real, as if it vanishes like the disappearing ink we used as children did. Well, as an Expert Witness in fitness injuries I can tell you it doesn’t.

Finally, if you do have to prepare a report, by all means prepare it yourself ! Do not let an attorney write “your” report for you. The attorney may find some facts missing, or a typo here and there. In that regard, those are to be discussed.  If you must, draft the report as you think it should read and then discuss it with the attorney. If anything needs to be clearer, or maybe placed elsewhere for greater emphasis or persuasiveness, then talk about it, do not write about it.

 

MISTAKE #4 – Sounding too much like an “expert.”

Clear communication is the key to many relationships. Whether it is a spousal relationship, Fitness injury, sports injury, or gym injury, effective communication is vitally important. I have learned two rules over the course of my career, and I find I do better when I remember to follow them than when I don’t.

Never Talk Down to the Jury . Even if the jury is not “there,” such as a deposition, never, ever talk down to them. Remember this, each person on the jury is an expert, just as you are. Will Rogers once said, “Everyone is ignorant, only on different subjects.” That could be said another way, as well,…”Everyone is an expert , only on different subjects.” So, they may not be experts in the same field as you, or as each other, and they certainly may not have the same level of education or letters after their names, like C.P.A., J.D., or PhD. for example, but they ARE experts in what they do. And, for however long the trial may last, as a matter of law they are experts on the facts of the case being tried and on the credibility of each witness, including you. So be professional and speak clearly, slowly, and with conviction.

Dave Parise CPT FPTS

 

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