Working as an expert witness is like no other job in the world. In most jobs (unless one
works alone), if you work in a company, someone above you in the management hierarchy
knows more about the subject matter than you do. (This is less so in a public agency.) But in no
profession other than an expert witness does the person you are working for know not only less
about the subject matter than you do, but often nothing about the subject matter whatsoever.
This is not to say that all, or even most, lawyers are stupid. We are not speaking about
intelligence here. We are speaking about knowledge. And these individuals of whom I’m
speaking are generally experts in the law. So on those occasions when he or she can snare a
genuine expert in the subject matter, and realize that he or she, as an attorney, is an expert in the
law, working as a team can be magical. It almost always yields the results both of these
individuals want – unless a case is so indefensible that winning is unlikely. But this magical team
will not take this case. Because even if the otherwise- or sometimes-excellent attorney does, the
genuine expert will not. So these losses rarely happen.
But when a lawyer thinks he or she knows what a case is about, and it is a transportation
case, that attorney is living in a world of danger. If he or she is lucky, he or she will find a
genuine expert in the subject matter, and that individual will inform him or her, in a nice way,
that the case is not quite about what you think it is. One type of transportation case where this
happens a lot involves wheelchair tipovers. Because in most of these cases, the attorney only
knows that the passenger flew out of his or her wheelchair. Unfortunately that is enough to win a
case. But it is not enough to win the most money. Here’s why:
If a driver is unwilling to spend the 20 seconds it might take to fasten the passenger’s lap-
and-shoulder belt, why in the world do you think he or she would spend four or five
minutes securing the wheelchair (which it takes many drivers when parts of their
securement system are gummy or dirty, which is common)?
Otherwise, this is not even the point of this article. Say you’re the plaintiff’s lawyer.
Forgetting about the fact that Federal regulations do not require the driver to follow the clear
industry standard for securing a wheelchair (based on laws of physics that were published 339
years ago), either a fly-out or a wheelchair tipover (the chair only has to move more than two
inches “in any direction” during “normal operating conditions” – which include slamming on the
vehicle’s brakes – is not, barring extremes, a losable case). It may not even be losable if you are
holding the judge’s grandson for ransom – although there is a good chance you will lose the case
if you already killed him, the judge knows this, and you begin your case by saying something
like, “If I may have a word with you, your stupid honor.” Otherwise, a wheelchair tipover case,
or one where the driver failed to secure the passenger into it (even while you may not know or
plead this), is not a losable case. Under normal circumstances, ever. Ever.
Now here you are. You’re a lawyer in America. If you win this case, the jury will award
your client damages. The expenses for your technical expert and your medical expert – or a small
army of them – comes out of the two-thirds of the money awarded to your client. You (or your
firm) gets to keep a full third of these winnings. So, here you are. With an unlosable case. Your
client flew out of a wheelchair and your already-health-compromised client is now doomed to
spend the rest of his or her life bedridden with endless, excruciating pain and misery – and your
expert asks you if he or she can examine the vehicle? Why? Well, for frosting, if your expert
finds that the wheelchair also tipped over, or even moved a crummy two inches, your client’s
civil rights were violated. If your incident occurred in, say, the Bronx, and your expert lives in
Manhattan five blocks from the Bronx border, would you really not allow your expert to examine
the vehicle? Is this a fantasy? Not remotely. In this very incident, and dozens like it, I declined to
take that case. Not a smart decision for the attorney who contacted someone like me, since my
record in wheelchair and passenger securement cases is something like 150 to 0 (you can find a
few thoughts I have on this subject at wheelchairandpassengersecurement.com. Truth really is
stranger than fiction.
Now, a slightly different question: You have six clients, all wheelchair users, whose
chairs were not secured in their schoolbus (this is less likely than on other modes and services),
the driver was drunk and high, the schoolbus rolled over, all six of your clients are now complete
quadriplegics, every medical expert you’ve spoken to tells you that every one of them will live
for decades in unrelenting, excruciating pain, and will rarely even be able to sleep unless
drugged to the edge of death. But here’s the rub: The best wheelchair expert lives in Pluto. What
should you do? W-H-A-T S-H-O-U-L-D Y-O-U D-O?
Here’s what you do. You pay whatever you can go get a five-minute audience with Elon
Musk, and on your hands and knees, you beg him to have someone fly to Pluto and get your
expert. What? You need a trillion dollars? Well, he has a trillion dollars. And this expense will
come from the winnings of all your clients. Okay, so they will not win a trillion dollars. But Elon
will make it up in the slew of additional investments that will come his way as a result. Maybe
he’ll do it! If not, and the second-best expert lives on Mars. Elon will DEFINETLY fetch that
expert. And with the additional investments that will come his way for the moderate cost of
something he has been planning to do for a decade, he will certainly fetch your expert.
So here’s the question: With an unlosable case possibly worth millions, you are not sure
whether or not the wheelchair moved two inches, you are merely an expert in the law and don’t
know this, and your practice is in New York City — why would you not want your expert who
lives in, say, Jersey City, to examine your vehicle?
If you do not, or do not wish to do anything even close to this, here are 10 numbers to
never dial in this sequence: 2-1-2-7-6-6-1-1-2-1. NEVER. Whoever gets that phone will tell you
that not examining the vehicle – unless it is not available — is not negotiable. (I once examined
one that had been set on fire to cover up the evidence – which it did not do.) And he or she will
hang up the phone at a speed at which Elon Musk’s rocket will never reach. I know about these
things. My name is Einstein.
With an unlosable case, a certain large settlement coming your way, and costs for your
experts coming out of your client’s share, why would you care what planet your expert lives
on when he or she needs to examine the vehicle?