Reaching an objective, fact-based conclusion a court will admit into evidence requires learning how to properly dive into a case. You could start anywhere. But for efficiency’s sake, it’s better to take a step-by-step process that you can document and replicate.
Meet with the Hiring Attorney
Before your research, it’s imperative you come to an understanding with your hiring attorney. The lawyer or legal team should explain the case. The explanation should include the cause of action and circumstances that led to the dispute or criminal charges. Bear in mind, you shouldn’t draw any conclusions regarding whether the attorney’s client is right or wrong. You simply want the pertinent facts.
More importantly, you need to understand the attorney’s expectations. What do they want you to do? What do they want you to offer your opinion on? During this conversation, you may realize you aren’t the proper expert for the case. For example, the attorney may want you, a cardiologist, to opine on the standard of care in an emergency room. In this case, you may need to decline. Instead, guide the attorney toward a more appropriate medical expert.
If you’re comfortable with the proposed task, discuss any limitations you may have with the attorney. If you’d conduct a site inspection after a slip and fall, explain what you would and won’t do. For instance, that might include not going into any space requiring specialty safety equipment.
Also, have a conversation about whether you’ll write a report. Anything you write down, from your informal notes to a final report, is discoverable. This means the other party could see it during litigation.
Because of discovery, the attorney might advise you not to draft a report until you’ve researched, drawn a conclusion, and conferred with them.
Clarify Your Tasks
What the attorney expects you to do depends mainly on the type of case and your expertise.
- Review records
- Review official reports
- Analyze electronic evidence
- Inspect the location of a crime or accident
- Perform an independent medical examination (IME)
- Inspect or test an allegedly defective product
- Collect and test samples from a relevant site
- Conduct laboratory testing
- Create accident reconstruction models
- Perform financial modeling
Always clarify the attorney’s expectations and the materials, data, time, or assistance you’ll need to draw a fact-based conclusion.
Tips for Getting Started
Whatever your part in the dispute, there are some steps you should take to kick off your early case research.
Analyze Images Early On, Without Context
You want a clear, objective mind when you review photographs, videos, medical imaging, or other images for the first time. Try to look at them before diving too deeply into the other records. It can help to give visual evidence a “blind read” to gain your initial, unbiased opinion.
Start with the Most Relevant Records
Review the most relevant records, which could mean the most recent, and then work outward (or backward). The truth is you have to start somewhere, and in some cases, you have access to thousands of records. Dive in where it makes the most sense. What that looks like depends on the circumstances and your expertise.
You’ll need to discuss which records appear the most relevant with your hiring attorney. If the plaintiff or prosecutor has already filed a lawsuit, relevant records include the complaint, pleadings, and other court documents.
Your attorney may be strategic in which records they give you and those they hold back. They might not give you every document or dataset intentionally. That’s because anything you receive is discoverable. At the very least, your attorney won’t hand over anything that would break the attorney-client privilege.
Define the Data You Need for Visual Aids
If the attorney expects you to create any model, diagram, or visual aids, determine what data you’ll need as soon as possible. Then, work with the legal team to find the relevant records and data. As an accident reconstructionist, you may need access to photos, vehicle damage reports, manufacturer specifications, and vehicle data. You may even prefer to visit the crash site and take pictures and measurements yourself. Never hesitate to tell the lawyer what you need.
Brush up on Industry Best Practices
If your research depends on you drawing a scientific conclusion, make sure to review best practices and accepted reliable methodologies. Any medical, scientific, or technical inference must come from research or testing that adheres to the scientific method.
If you conduct lab testing, the process should adhere to industry standards. Or, you might draw a particular conclusion about the type and severity of a medical injury. If this happens, your decision must be accepted by the medical industry.
Talk with your attorney about whether the jurisdiction follows the Frye or Daubert standard. It helps to understand how the court will assess whether your methodology is acceptable.