Year: 2014

From the perspective of the expert witness, examination is not a particularly enjoyable process.  The adversarial environment, intensity of focus, and technical nature of the data all combine to add stress to an already demanding situation.  Experts themselves also may have some degree of self-doubt, a subliminal fear of being placed under scrutiny magnified by the inherent human tendency to avoid criticizing others.  In the absence of a focused mind, even the staunchest expert may melt under the spotlight of skillful examination.  Consequently, an astute litigator must understand the perspective of the expert and then reinforce the skills that will lead to the expert’s — and the case’s — success.  Toward this end, a basic pep talk is a good place to begin.

Although you are a skilled litigator, your expert must start with the essentials.  Define the differences between direct and cross-examination and explain that both are simply dialogues between the expert and the attorneys.  Explain that when an examination occurs at deposition, it will take place at a law firm, an office, or another neutral location.  When it occurs at trial, the expert will be in front of a judge and jury.  Many experts view deposition as an informal dress rehearsal for trial, a mistaken perspective that downplays the significance of rigorous preparation and attention. The key is to understand that deposition is simply an extension of the courtroom and that testimony will be under oath and used in court.  Consequently, instruct the expert to prepare for deposition and trial with equal intensity.  Remind the expert that their behavior, mannerisms, physical appearance, and attire may directly or indirectly influence their perception as a credible expert and case asset.  Since you are experienced in the techniques necessary to prevail at trial, build teamwork by asking the expert to listen carefully to your suggestions.  Similarly, remind the physician that you respect his or her own critical strengths: the skill of speaking to people in stressful situations and the intelligence of being a learned expert.  It is the combination of the litigator’s experience and the physician’s abilities that will increase the probability of success in any given case.

Take time to establish the expert’s role within the framework of the case.  Remind the expert that he or she is an impartial commentator.  His or her loyalty is to the court thus obligating the expert to render honest and unbiased opinions.  The expert is neither the accuser nor is he or she responsible for the events that have transpired.  The expert alone will not determine the destiny of either party. Rather, the expert will educate and inform the trier of fact in the anticipation that justice will prevail.  While an expert should never advocate opinions with which he or she disagrees, the expert must skillfully articulate and defend the positions already professed. It is a responsibility not to be taken lightly.  A compelling expert must exhibit resiliency in the face of tough questioning and remain steadfast in supporting the opinions that they offer. Remind the expert to rely on competent training and years of professional experience. Those strengths are the key to rendering deliberate and assured testimony based soundly upon the medical facts.

Work with the expert to hone confidence and build presentation skills.  Time spent with a good pep talk — really a “prep-talk” — will be time well spent.

The success or failure of any medical negligence case rests squarely upon the medical facts, yet it is the competence of the testifying expert that ultimately allows those facts to be discovered and voiced. Consequently, the starting point of any successful outcome must be the selection of the best expert witness. Whether opining for the plaintiff or the defense, the litigator with the top medical expert secures a strong competitive advantage.

The first step in selecting an expert is to assure the strength of his or her credentials. In general, however, most credible experts have graduated from a US medical school and have attended a US residency program for specialty training. Those that attend top-tier schools such as Ivy League universities may have an intangible perception of elevated credibility based solely upon their credentials. Experts should be in full-time practice both presently and at the time of the alleged negligence, though exceptional experts may have additional fellowship training or publications within the specific area of medicine which they are addressing. Experts should have extensive clinical experience which manifests itself in professionalism, confidence, and fluency.

Beyond the essential traits outlined above, there is one additional factor that often affords a tactical benefit: academic affiliation. Academic affiliation means that the expert serves on the faculty of a major university medical center. Depending on their degree of tenure, these elite experts hold the title of Assistant Professor, Associate Professor, or Professor, respectively. To gain such a title and then ascend in rank, academic experts must maintain a full-time practice of patient care in addition to academic responsibilities which include both teaching and research. In so doing, academic experts build lengthy CV’s detailing their education, committee involvement, research, awards, and publications. Since academic physicians are also precluded from advertising or promoting their services, they are often viewed as more impartial and altruistic than other experts whose services may be more available. Juries often perceive physicians at the professorial level as the ultimate authorities in their field and they ascribe particular significance to their testimony. Throughout all phases of litigation and especially in the courtroom, the side with the “Top Medical Expert” may possess a true strategic advantage.