A top-notch expert witness is invaluable in a lawsuit. However, if the physician or surgeon has little experience as an expert witness, attorneys may face several challenges in working with them, which could adversely affect the case. Good communication is essential between attorneys and experts. Some helpful tips to aid those efforts include the following:
- Detailed retainer agreement. An inexperienced expert witness may not appreciate the amount of work, time constraints, and practical issues involved in testifying or consulting. A retainer agreement should outline the expectations for the expert including an explanation of the services to be performed. In addition, it should set forth the fees to be paid and invoicing and payment terms, including the need for pre-authorization of billable hours and expenses. Also, attorneys should emphasize the importance of timely billing to ensure that the expert’s payment is approved and paid prior to the distribution of any case proceeds.
- The expert’s deadlines and deliverables. An engagement typically requires several deliverables from the expert that must be communicated by the attorney. While the retainer agreement may state that the expert will prepare a written report, reports are rarely necessary when an expert’s opinion is negative. For this reason, attorneys should always schedule a phone call to discuss the expert’s preliminary findings prior to drafting a written report. Best practice is for the attorney to give a specific and detailed explanation of what they expect the expert to do, the time by which it should be completed, and the way in which the expert’s opinion should be conveyed. Attorneys should also provide any special instructions, such as the need for a written report to be signed or notarized. Since experts may not understand the strict deadlines involved in litigation, lawyers must clearly explain the need to comply with due dates and should provide reminders as deadlines approach.
- Contact information and communication preferences. Both the attorney and expert should convey the best ways to reach each other and expectations regarding communication. For example, if either party sends information to the other, the recipient must confirm receipt. In addition, it is important to provide guidelines on how often and by what means regular communication may occur, such as the need for a regular status call. In particular, experts should understand that written materials are discoverable so they must follow the attorney’s instructions regarding what should be put in writing. Ongoing communication is the surest way to affirm that both the attorney and expert are on the same page regarding expectations along the case’s trajectory.
- Mutual respect. Attorneys are incredibly busy and prone to unexpected interruptions from clients and courts. Physicians and surgeons are also pulled in many directions, but their disruptions are more unpredictable and may literally involve life and death. For that reason, it is important for medical experts and attorneys to have mutual respect. A canceled call or delayed communication is to be expected and should not adversely impact trust and confidence. When communications are routinely missed, an open dialogue can resolve the issue in creative ways such as arranging communication by text, after hours, or on weekends. Professionalism, understanding, and respect always triumph over resentment.
Each of the greatest experts in history started with a first case, so inexperience as an expert witness should not be a universal disqualifier. In fact, using a novice expert can benefit your case by preventing the attacks used against experts who frequently testify and by showing that you didn’t need a “hired gun” from a stable of experts. However, the challenge is in educating them about the litigation process. Good communication with your expert witness serves that purpose and is the key component to a successful engagement.
If you are considering or involved in any type of medical litigation, contact Elite Medical Experts to hand select nationally recognized experts (Professors of Medicine and Surgery) for your case. Our customized expert searches can help you find the right expert in the exact injury and issues involved in your matter.