In an automobile accident case, the plaintiff has the burden of proving his case by a preponderance of the evidence. In order to meet his burden of proof, the plaintiff must present evidence in the form of testimony to the judge or jury.
Although the method of presentation of the evidence can be challenging, the real challenge is to make sure that all of the witnesses needed to prove the case appear at the designated time and place for their testimony. Often, this requires that the plaintiff issue subpoenas which require the appearance of the person who will testify.
Subpoenas generally must be issued many weeks before trial. The rules usually require that the subpoena be served on the witness in person or at his home or place of employment. The courts usually charge filing or service fees to process and issue the subpoenas with the court's signature or seal.
Out of state witnesses present an even greater challenge. The courts will not usually allow the issuance of a subpoena to an out of state witness to compel his appearance at the trial. The rules do allow for the taking of an out of state witness' testimony by deposition, but the deposition is used in lieu of the live testimony.
Expert witnesses are also difficult to get to trial. Top experts lead extraordinarily busy schedules. To come to trial, the expert will likely have to cancel or postpone many scheduled activities of his profession. This will cost him a lot of money. Also, there is no guarantee that he will be able to fly in and fly out in one day to render his testimony.
During the trial, the amount of time it takes to pick a jury and examine all of the witnesses which need to testify before your expert takes the stand cannot be predicted accurately. Thus, you may tell your expert to clear his schedule for a Wednesday, and then you may not be ready for him to testify until Friday. Most experts know this and will not commit to appear for more than one day because of the lost time and money involved.
The procedural rules also allow a party to present evidence from the expert by deposition or video taped testimony, thereby alleviating this problem, but this is much less effective to present to a jury than a live person. Jurors quickly get bored with depositions that are read to them and video testimony precludes the effective use of drawings and charts to illustrate the testimony.
The problems in getting the medical expert witness to trial require the expenditure of tremendous sums of money to compensate the witness for the substantial lost time. They also present challenges to even the most experienced automobile accident lawyer to manage the timing of the testimony so its impact on the jury can be maximized.
This is why it is important to choose a lawyer who has trial experience with automobile accident cases. Knowing what to do when a witness is delayed or when a witness goes missing just before trial can very well mean the difference in winning and losing the case.
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