In choosing experts, avoid those that embrace the “enemies” of all aspects of litigation and trial: complexity, confusion, and ambiguity. To have a winning outcome the focus should be on defining in simple terms “the rules of the road” of premises liability. The focus instead should be instead to achieve simplicity, clarity, and non-ambiguity in the expert’s testimony.
Expert witnesses love their subject areas and love to talk about them, as you would expect. The intricacies and minutiae of their areas of expertise fascinate them. They may be so familiar with the basics of their subject area that they often forget to even mention them to retaining counsels. Many also tend to use highly technical jargon, which is regularly used in conversation within their field, but has little meaning to the layperson. Having viewed the work product of many forensic experts retained by opposing counsels, while their work may be credible; they often fail to mention the basic rules governing accidents in the built environment or get lost in the weeds of technical elements, which a colleague would easily understand, but potentially confuse a judge or jury. From a lawyer’s perspective, think of it as the difference between legal conversations on a topic that one would have with an experienced judge as opposed to a client whose knowledge base has been derived from a few Google searches. Those conversations will be quite different based on the audience.
The first task in selecting an expert is to have a thorough discussion with them concerning the fundamental principles of their field that apply to the case. This conversation needs to happen early in the life cycle of the case. The ideal time for this conversation is before the complaint is filed, but certainly, before discovery has started.
A great strategy is to take the expert back to the basics of their field. Ask them what the relevant statutes and regulations are. Does the expert agree that they apply to the allegations in the case? In premises liability cases the rules that apply are typically the life safety, building, and maintenance codes that have been adopted by the state and local jurisdictions. Therefore, these codes are governing. Other governing codes take the form of design guidelines published by the US Justice Department to give equal access to challenged people. These are known as the Fair Housing Act (FHA) and Americans with Disabilities Act Accessibility Guidelines (ADAAG). These apply to the challenged class but can also apply to the public if incorporated in whole or in part into the state building codes as today they often are.
A good expert should be able to state these complex rules in a simple, more understandable way. Since life safety and building codes represent the basic industry consensus concerning principles of safety, conformance to or breach of these codes is at the core of a premises liability case. If the code provisions apply to the scene of the accident, and the premises owner clearly breached these codes, then the owner is a rule breaker. The deficiency clearly presents a hazard and is a threat to the health, safety, and welfare of the building occupants who encounter it. The objective of the architect/engineer expert is to prove or disapprove the hazard’s existence via discovery in the field. The fact that the code deficiency is proximate to the client’s accident allows the expert to opine that these code violations are more likely than not to have caused in whole or in part the injuries suffered by the client.
With the above testimony via dispositions and the expert’s report in hand, the testimony is stronger and close to unshakable. This testimony is within the expert’s comfort zone and is rooted in solid foundational principles and rules. The attorney can then go back look at those sources. Notice in the above that there is no mention of the client’s intent, conduct, or mental or physical capabilities. Leave those to human factor experts. Architects and engineers should stay clear of those grey areas and all grey areas in general that are open to interpretation.
Appreciation to:
Friedman, Rick, and Patrick Malone. Rules of the Road: a Plaintiff Lawyer's Guide to Proving Liability. Trial Guides, 2010.
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