Thursday, September 5, 2013

New to Expert Witnessing? Know Your Legal Lingo

M&A keeps Black’s Law Dictionary close at hand. 
It’s a useful reference for looking up legal terminology.

To make a good first impression, an expert needs to know the legal language attorneys use when discussing a case. The initial interview is very important as it gives the attorney a sense of your expertise and how familiar you are with the legal process. When an attorney uses words like plaintiffs, complaint, discovery, and scheduling order, you should know what he/she is referring to and you should be able to use appropriate terms when asking questions. Here we present some of the lingo used in initial communications with an attorney. We will present more legal jargon helpful to experts in subsequent posts . . . stay tuned.

Civil vs. Criminal – Different Lingo

When retained in a civil matter, you will work on behalf of the plaintiff or the defendant. The plaintiff is the side suing, the defendant is the side being sued. This is not to be confused with a criminal case in which the prosecution is the side filing a case against the defendant. Experts are used in both cases, but the parties are different. In a civil case, the plaintiff is an individual, an entity or a group of individuals or entities, whereas in a criminal case the prosecution is always the government. When asking the attorney which side he/she represents, you will sound inexperienced if you use the term prosecution when the case is a civil one.

Timeline Lingo

During the initial interview or subsequent conversations, ask the attorney how far into the discovery phase they are. Discovery is the exchange of information by both sides of the case, such as company documents or a person's history of illnesses. If the attorney says the complaint was recently filed, then you know it is very early in the case, and no discovery has occurred. The complaint is the initial document filed by the plaintiff’s attorney with the court stating the basis for the lawsuit and sets the first timeline in the legal process. The opposing side typically has thirty days to reply to the claims (assertion of facts) in the complaint.

Another way to find out the timeline of the case is to ask if there is a scheduling order. The scheduling order sets the dates by which both sides need to meet various milestones. It is an agreement between all parties and the judge handling the case. When the attorney tells you expert discovery closes on a certain date that means that experts on both sides must have submitted expert reports and have been deposed by that time. If that date is within a few months, then you know the case is far along and you have limited time to conduct your review of the discovery materials, perform any independent research and form your opinions.

Submitted by Wendy N. Pearson, President

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