We continue our series on the civil litigation process in Oregon by taking a closer look at witnesses.
Witnesses are the lifeblood of the trial. Without witnesses, many exhibits cannot be offered into evidence. Some witness testimony is essential to prove key elements of the case. Other witnesses may provide background information for the jury's consideration.
Generally, there are two kinds of witnesses; lay witnesses and expert witnesses. A lay witness is also referred to as a "fact" witness. A lay witness will testify about "personal knowledge" of certain facts or events. For example, a pedestrian who witnesses a motor vehicle collision would be a lay witness. The witness simply testifies about what he or she saw. A lay witness cannot speculate about what may have happened, or what another person was thinking. The term "personal knowledge" means the witness has to have actually experienced the situation she is testifying about.
Often times, people will talk about "hearsay." This term of art can often be found in the television courtroom drama. Hearsay simply refers to what someone else said. For example, if a witness is called into court, he or she cannot testify about what some of the else told them. Of course, there are exceptions, but generally, this is not admissible because it is considered unreliable evidence.
The other kind of witness in a civil case is referred to as an expert witness. In many personal injury and negligence cases, expert witnesses are necessary to prove the case. An expert witness is somebody who has special knowledge or expertise, and based on that special knowledge or expertise, is qualified to provide an opinion about a certain issue in the case. In order for an expert witness to provide an opinion, the party calling the witness must establish that the witness is in fact an expert in a certain field. Attorneys will establish a "foundation" that "qualifies" the witness.
A common expert witness in a personal injury or negligence claim in Oregon is a medical professional. An attorney will "qualify" this witness by asking questions about the physician's training and education. If the issue in the case involves a neurological issue, then the expert witness may be Board Certified in Neurology, which would give the physician additional expertise in that area of medicine. Physicians will testify about the history the patient provided to them, examination findings, the diagnosis, and the future outlook for the injured party. The medical expert will also discuss whether medical expenses were reasonable, and whether the treatment was necessary. Many medical doctors who testify for Plaintiff's are the actual treating doctors, and often have little experience in court. Many times, the doctor's testimony is videotaped to accomdate the doctor's busy schedule.
The defense, in a personal injury case, will often call its own medical expert. These doctors often perform examinations on behalf of insurance carriers, and then testify at trial. Some will testify as often as once a month, and are handsomely compensated. Many of these doctors are retired from private practice, or see only a few patients a week.
An expert witness cannot give an opinion unless the opinion itself is based on generally accepted scientific principles. An opposing attorney may challenge an expert opinion, arguing that the opinion is not based on sound scientific principles. Untested are unreliable scientific evidence is often referred to as "junk science." Often times, this issue is argued in front of the judge prior to the jury considering the evidence.
Which expert witnesses to call and when is a critical strategic decision, and if you have questions about whether your case would be filed in court, and require expert testimony, call us at 503-325-8600. We have twenty years of experience with expert witnesses in Workers' Compensation, personal injury, and Social Security litigation.
