Three Common Rookie Mistakes New Personal Injury Lawyers Make


Rookie mistake are avoidable errors that new lawyers without the perspective of experience will often make. Expert witness discovery is an area of personal injury law where new lawyers can make mistakes. Here are my top three rookie mistakes applicable to expert discovery in a personal injury case.

– Rookie mistake #1 – failure to understand the distinction between a retained treating doctor and a non-retained treating doctor. Not having a clear understanding of the ramifications of these distinctions can result in a host of problems for the new PI litigator. In this context the term “non-retained” means a doctor that has not been hired and paid to review medical records and provide opinions. It gets tricky because treating doctors are both experts and percipient witnesses. A treating doctor acquires, independent of the litigation, personal knowledge of relevant facts, and has training, skill, and experience which enables them to form an opinion about those facts. The case of Schreiber v. Estate of Kiser (1999) 22 Cal. 4th 31, explains the ramifications of this distinction.

– Rookie mistake #2 – Failure to meet with your client’s treating doctor before a trial date is set to determine if they are willing to act as a retained treating doctor in the case. Meeting face to face with your client’s treating doctor well before deadlines and cut offs are present improves the chances that the treating doctor will agree to review the records and prepare to give a meaningful deposition. Not waiting until the last minute shows the doctor by the example of your preparation, that you will be easy to work with when the trial date is scheduled. At your face to face meeting you may learn that the treating doctor is not willing to review the medical records and provide opinions for trial. Guess what! Because you found this out early, you now have plenty of time to go hire another expert to review your client’s case and give opinions at trial. Finding out a treating doctor is not willing to cooperate is something that needs to be learned early on in the case, otherwise a host of problems will occur.

– Rookie mistake #3 – Not making your retained experts available for a meaningful deposition. Retained expert witnesses must be produced for deposition. A subpoena is not needed to compel a retained expert to show up for their deposition. If noticed, it is the obligation of the party who has retained the expert to reasonably make their expert available for a meaningful oral deposition. The best way to do this is by securing some good dates for your expert’s deposition before your expert is formally disclosed. This puts you ahead of the game.

Don’t wait for the deposition notice from the defendant to arrive before trying to secure some workable dates and times. By then it may be too late. Remember doctors are busy, they see lots of patients and do lots of surgeries. Be proactive and send a letter to your opposing counsel which sets forth the dates that will work for your expert’s deposition. If scheduling becomes difficult, you will have written proof that you provided available dates for your expert’s deposition early on in the expert discovery time window. Preparation and forethought equals less drama, less drama equals less stress!

If you are interested in learning more about rookie mistakes new plaintiff personal injury lawyers can avoid, check out my free video, “The Top 10 Rookie Mistakes And How To Avoid Them.


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In his 20 years of law practice, Al has handled more than 40 jury trials. This experience, combined with a commitment to ethics and integrity, has earned Al an excellent reputation throughout the San Francisco Bay Area legal community. He is the recipient of Martindale-Hubbell‘s “AV” peer rating, which signifies preeminent legal ability and ethical standards, and has been named a Northern California Super Lawyer every year since 2006. In 2009, Al was awarded the prestigious 2009 Civil Justice Award by the San Francisco Trial Lawyers Association, given to attorneys who show integrity, grit, tenacity, ethics, and great advocacy skills, and who contribute to the betterment of consumers and/or injured victims and their families.

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