Nuclear settlements and verdicts remain a significant problem for defendants and insurance companies. With considerable economic issues surrounding the value of any individual case, defense attorneys have an opportunity to be more proactive and more aggressive in their litigation strategy with the help of forensic engineering experts. 

While the expert’s role is not to determine who wins or loses, forensic engineers can help defense teams as they determine the facts of the case and ascertain the likelihood of reasonable ways that the event in question occurred. Defense attorneys can better maximize settlement and verdict outcomes by utilizing these experts.  

How can defense attorneys improve insurance defense?

Defense teams can use expert witnesses to resolve claims in mediation and thwart injury claims by the plaintiff's counsel. Learn the importance of preparing expert witnesses, just like preparing fact witnesses, and what a client should look for when hiring an expert. 

Tip #1 - How Mediations Can Be Used to Resolve Claims

Forensic engineering experts can be used in mediation to resolve a case fairly and equitably for all parties. Part of the role of the forensic engineer expert is to gain an accurate and complete understanding of all the facts of the case. Sometimes one side may be privy to information the other does not have. During mediation, the experts for each side have an opportunity to sit down and walk through the facts of the case together. This may provide additional information that could dramatically influence the case outcome. Even without a settlement, mediation is also an opportunity to see the other side and what evidence they may plan to present if the case moves forward to trial. 

At the end of the day, the insurance business is just that, a business. Its primary interest focuses on return on investment. In many instances, where both sides are coming to mediation with an honest intention to understand the other side's position better, there can be an opportunity to settle the case. Additionally, if it appears to cost the insurance business more to investigate than the stated amount of the loss, they will likely just pay the claim. 

Tip #2 - The Importance of Preparing Expert Witnesses

Although expert witnesses have specialized knowledge, they are still human and, therefore, susceptible to making mistakes during their testimony. It’s not that these witnesses intend to make mistakes; instead, these mistakes generally occur when emotion gets involved, and the witness succumbs to an amygdala hijack. To ensure they perform to the best of their ability, it’s important to put these experts through witness effectiveness training that can help them stay faithful to their testimony without appearing unreasonable, agitated, or condescending.

There can be a significant amount of nuance concerning expert witnesses and testimony. For instance, the need for experts to understand that they have to stay in their narrow lane of expertise. Let’s say you have a fire investigator who has investigated a fire caused by an electrical issue. It would be important for that investigator to only testify to things within their expertise and not to speculate as to details that should be the purview of the electrical engineer, who should be a separate expert witness.  

There are a number of plaintiff attorneys who will try to trip up expert witnesses by asking multi-part questions, and these can get very dangerous for experts. Through training, witnesses can be taught how to identify these multi-part questions and ask the plaintiff's attorney to separate those questions so that the witness can answer them one at a time, taking much of the risk out of the equation. Additionally, through training, witnesses can be taught only to answer the question and be brief in their response. Preparing expert witnesses comes down to adequate preparation and practice.

Tip #3 - How Experts Can Be Used to Thwart Injury Claims By a Plaintiff

Most attorneys will try to use medical doctors for all aspects of their injury claims, namely to prove injury causation and the extent of the injury. Yet, it’s typically not the doctor's job to determine the mode of injury. Rather, their job is to determine if someone is injured and, if so, what the rehabilitation process is. Defense attorneys can be better served by inserting an additional expert into the injury claims arena, such as a biomechanical engineer. 

The role of the biomechanical engineer is to determine the forces at play in a particular accident and determine whether or not the injuries that are either reported and/or sustained by the plaintiff are true and correct as a result of a particular incident. This can vary slightly by jurisdiction, depending on where you are in the country. Not all courts favor this interpretation; for example, some do not like the additional layer of complexity, but many courts allow it. 

Tip #4 - What a Client Should Look For When Hiring an Expert

Simply because someone is an expert doesn't necessarily mean they’re a good or effective witness. Therefore, it becomes important for the defense team to understand what they need to look for when choosing an expert. This often depends on the type of case being tried. For example, property damage cases rarely go to trial. So while it would still be nice to have the best expert possible, a defense team could easily have a more junior engineer go out and work up the full assessment for a case that will likely settle. 

On the other hand, if it’s a personal injury claim, patent litigation, or some other type of litigation that has a higher likelihood of going to trial, that probably changes the bar as far as what you are looking for in your expert witnesses. For a case that has the potential to go to trial, you likely want an expert with extensive experience in that field, somebody that’s fair and impartial, and, ideally, someone who has worked for both sides. You also want an expert who is very well-spoken and thoughtful. In most instances, you don’t want to choose someone who will be testifying in their first deposition or trial as there exists a high possibility for them to make any number of rookie mistakes that could impair your case. 

At Courtroom Sciences, we aim to help you minimize litigation costs and settlement amounts. Learn how CSI's litigation research experts can aid your next case.

Key Takeaways

●  Forensic engineering experts can help defense teams determine the facts of the case and ascertain the likelihood of reasonable ways that the event occurred. 

●  Defense attorneys can use forensic engineering experts to have a better chance of maximizing settlement and verdict outcomes.  

●  Defense teams can use expert witnesses to resolve claims in mediation and thwart injury claims by the plaintiff's counsel. 

●  Learn the importance of preparing expert witnesses, just like preparing fact witnesses and what a client should look for when hiring an expert.

●  At Courtroom Sciences, we aim to help you minimize litigation costs and settlement amounts.