Premises liability cases present a number of challenges. Convincing a jury that a business owner is responsible for someone who has fallen on its property is no easy task. Generally, businesses defend these types of cases by showing that: (1) the business did not create the dangerous condition (i.e. a customer spilled coffee on the floor); (2) the business did not have notice of the dangerous condition; (3) there was not enough time to fix the dangerous condition (i.e. clean up the spill); and (4) the Plaintiff was not paying attention and/or being careful.
While the Plaintiff is your most important exhibit in the case and your facts are extremely important, utilizing the right expert in your case can make a huge difference. You may not need an expert in every case, but it can be very helpful in making your client’s case.
When to Involve the Expert
After meeting with the Plaintiff and investigating your claim, you should start thinking about experts. It is very helpful to have your experts on board well before suit is filed if possible.
Using the Expert in Discovery
Most cases are won in discovery. Therefore, you should do everything that you can during the discovery phase of your case to gather information and establish that the defendant’s negligence and/or recklessness caused damage to the Plaintiff.
Interrogatories and Request for Production
When you file suit, you should always serve opening discovery with the Petition for Damages. That way, the defense has to start working on your case right away. An expert can help you come up with Interrogatories and a Request for Production of Documents that is calculated to gather all of the information relevant to your lawsuit. For instance, a grocery store industry expert would likely make sure that you request sweep logs and other key grocery store documents. Whereas, an architect and/or engineer would certainly make sure that you request any and all architectural/engineering plan documents. Moreover, an architect may suggest going over to City Hall and taking a look at the final approved plans before filing suit.
Keeping Your Expert Informed
During the course of discovery, you need to make sure to send your experts copies of the depositions so that they are up to speed on the latest developments in the case. Moreover, you should talk with your experts before taking the opposing expert’s deposition to make sure that you are asking the right questions. Over time, you will find that your experts can help you focus on the key issues in the case and develop your primary theories of liability.
In Missouri State Court, your expert is not required to issue a report. However, it may be advantageous to have a report written by your expert. This needs to be determined on a case-by-case basis.
Your Expert’s Deposition
Regardless of the level of experience that your expert has in testifying, you should still prepare him or her for the deposition. The first thing that you must do is make sure that your expert has all of the records, discovery and depositions. After your expert has everything that he or she needs to prepare for the deposition, you should sit down with him or her and discuss:
- The expert’s opinions. Your expert should be able to concisely summarize his or her opinions. It sometimes helps for them to write them down.
- Go over the relevant standard of care and make sure that your expert can intelligently discuss it.
- Go over your expert’s CV.
- Discuss the defenses in the case to make sure that your expert has an answer to each and every defense. You should talk with your expert about all of the questions that you anticipate the defense asking.
- Discuss the background and style of the defense lawyer.
- Answer any questions or concerns that the expert has for you.
Types of Experts to Consider
Depending on the case, there are a number of experts that you may consider including, but not limited to, the following:
- Slip & Fall Expert
- Human Factors Expert
- Industry Standards Expert
- Medical Experts (Orthopedic Surgeon, Pain Management Specialist, Neurologist, etc…)
- Vocational Rehabilitation Expert
- Life-Care Planner