COMPLEX NEGLIGENCE CASES

Many legal cases are "smaller in scope" (even though significant injuries may be involved) and involve less time and expense than larger more complex cases. These smaller cases might only take one day to try and require one or two fact witnesses and a single physician to testify. The issues might only be:

• Who was at fault;
• The extent and relationship of the treatment; and
• How much are the medical bills and lost wages.

The complex case usually involves three issues:

• Fault
• Dameges
• Causation

Generally, depending on the jurisidiction, once suit is filed in a complex case it takes one to two years to actually get to trial. The first stages of complex and smaller in scope" litigation usually involve the discovery process. During this period each side must disclose facts that they are aware of. This usually takes two forms:

• Interrogatories - These are written questions that each side asks of the other (usually no more than 30) which must be responded to in writing. Since the answers can be read by the opposing side in Court it is crucial that the responses be accurate!
• Depositions - These are meetings with each potential witness where the opposing side may ask almost any question they wish (as long as it bears some relationship to the case). The reponses are transcribed by a court reporter and may be used in Court in a variety of ways. Depositions are frequently taken of all fact witnesses and experts in a case and are frequently used by the defense to evaluate the credibility of plaintiff's witnesses and to determine which of their witnesses they will call to testify in court. Frequently defendants name far more expert witnesses than they intend to use and will only call to court the ones that stand up best to examination!

The issue of fault in a complex case may be far from simple. Often there are issues requiring expert testimony. For example:

• In an elevator accident there likely will be a mechanical engineer and possibly a building management expert. The purpose of these experts is to demonstrate to the jury what was wrong with the elevator and what the elevator maintenance company and/or the building management company should have done to prevent the accident.
• In a medical malpractice case physicians, nurses or other medical care providers will be required to testify that the standard of care was violated, i.e. that the defendant did not follow reasonably expected behavior in the care of the injured person.
• Even in an automobile accident case expert testimony can often be necessary or at least useful. An accident reconstruction expert might be retained to demonstrate how the accident occurred by provoiding analysis of the speed of the vehicles or to explain when a driver applied his brakes.

Both sides will likely name opposing experts making it difficult for juries to determine who should prevail. In a "smaller in scope" case, the jury may simply need to decide if someone ran a red light. This is usually something that a jury can determine without the need of expert testimony. However, if the issue is what speed the vehicle was going when it went through a traffic light a jury may not be able to evaluate skid marks and other evidence that indicate the speed of the vehicle, without the assistance of experts. If both sides present experts with opposing views (as is commonplace) then the jury will have to evaluate and compare the experts to determine whose opinion makes more sense.

To prevail on this "contest of experts" it is crucial to be prepared at trial to present your own expert and to effectively cross examine the opposing expert in a manner that will convince a jury that your expert is correct and that the other side's expert is wrong or even biased. To accomplish this, your attorney must do two things before ever getting to the courtroom:

• First, your attorney must properly prepare your own expert so that he will withstand any attack the defendant's attorney will make at trial. This will include preparing the expert for his deposition (sworn oral testimony) that will take place well in advance of the trial.
• Second, your attorney must be ready to expose the weaknesses in the other side's expert's opinions or expose the expert's bias. This will require your attorney to understand the science which is the basis of the testimony prior to taking his deposition and involves research which may include:
  • Reviewing prior testimony of that expert in other cases
  • Consultation with plaintiff's experts
  • Review of applicable literature
  • Review of that expert's prior publications
  • Intimate knowledge of the facts of the cases which form a basis for the expert's testimony

In any case damages must also be proven. In a large case this will also often require multiple fact, medical and other expert witnesses to testify about how you were injured. This might include medical experts on both sides who will testify about how the injury will affect our client. As indicated above, it is normal that the experts will disagree as to the extent our client was injured. Again, the physician testifying on our client's behalf will need to be properly prepared and your attorney must successfuly challenge the defendant's expert's opinions and credibility. Aside from medical testimony there are often other experts that will be needed. For example:

• If there is a permanent future wage loss claim being made, a vocational expert might be needed to illustrate the difference in wage earning capacity that our client has between what he/she was capable of earning before the accident as compared to his/her diminished earning capacity since the accident.
• An economist might be called to explain to the jury how much this diminished earning capacity will cost our client over the course of their lifetime, taking into account inflation and changes in wages within the client's profession.
• The client may have injuries severe enough to require him/her to have to make changes in their lifestyle In such a case a life care planner might be necessary to show what accommodations are needed and how much they will cost, for example the cost of a wheel chair or the cost of building ramps in one's house.

Finally, there is the issue of causation. Even if your attorney proves that the other side was at fault in the accident and that you were indeed injured, there is often a dispute whether the actions of the defendant actually caused that injury. This arises most commonly in the situation where our client had an injury that preexisted the accident and we are seeking to demonstrate to the jury that the accident in question is the primary cause for our client's current disability as opposed to the disability being the result of the prior injury. Of course, as you may well have guessed, our opponents will be trying to prove just the opposite. As in the above issues of fault and damages, expert testimony is again essential to prove that the current disability is due to the new injury and not the old. This will likely involve obtaining the cooperation of the treating physician and discrediting the opinion of the other side's medical expert.

As you can readily see, these large cases are far more involved than the smaller and simpler case. These cases require tremendous preparation involving finding appropriate experts, preparing your experts and being ready to attack your opponents experts. Since a complex case can frequently involve six or more plaintiff's experts and an equal or greater amount of defendant's experts, it necessarily involves a significant investment of tens of thousands of dollars and significant time. All of this is usually being accomplished without our clients even being aware that this is going on behind the scenes. At Berman, Sobin and Gross, LLP we have the experience, knowledge and resources to prepare and litigate the complex case and we stand ready to prosecute these cases zealously on behalf of our clients.