Nothing in this high-energy field of trial work we all engage in is as stressful and nerve-wracking as the day your expert testifies. The expert is critical to the case, you have important opinions to elicit, and you need the expert to help you get to a jury.
No matter how much you prepare him or her, you cannot be sure of the testimony until their testimony is over. There are many ways that the expert can blow up in your face, but with some careful planning, and extensive preparation, you can avoid most disasters.
Careful preparation starts with selection of the expert, and careful and thorough discussion of the opinions she holds. It includes reviewing her published articles to be sure there are no conflicts. It includes providing appropriate records or reports for review as they become available. And, it includes at least two meetings before trial.
One meeting is usually immediately before the expert testifies. This is appropriate, and convenient, but cannot be the only preparation. If there are materials that the expert needs, or research she has to do, or issues to resolve, there is no time. The first preparation meeting should take place about 1-2 weeks prior to trial. It can be by phone. The purpose is to see if anything is needed, if there are any problems, and to resolve anything that arises.
There are four broad categories of preparation that your expert needs:
1. The facts
2. The law
3. The trick questions
4. The general rules
All are equally important and cannot be skipped or taken for granted. Often experts believe they know everything needed to provide good testimony. They are indignant that you want to be sure they have reviewed the facts. They tell you that they understand the importance of the legal standards, and they could never be tricked by anyone. They will tell you that they have “done this a thousand times,” that they “know the game,” etc…
But, the wise attorney does not accept these statements as true. If you do blindly accept any of those statements as true, you are putting your case at risk. Sometimes your case might survive the expert’s testimony anyway … but sooner or later you will be sorry. Learn to adopt a very apologetic and respectful manner of ignoring the protestations and prepping the expert anyway.
There are several cardinal rules of expert preparation on the facts and each deserves special attention:
1. Provide all the facts
2. Don’t ignore the problems
3. Never hang your expert out to dry
Provide all the facts: Your expert must have all necessary information in order to appropriately evaluate the case. This includes all medical records, if it is a medical expert. It includes having the expert examine the plaintiff, if deemed necessary.
Every prudent plaintiff’s lawyer is trying to save money, and it is true that you do not want to send unnecessary material – it is expensive to copy, expensive to ship, and expensive for the expert to review. But, do not leave out parts of records, or particular providers, without notifying the doctor of what you are doing.
You can send a list of items, along with a list of other records that are available if the doctor deems them relevant. Then, he can ask for additional materials if needed. For example, in a failure to diagnose breast cancer case, your gynecologist expert does not need the follow-up treatment records from the oncologist. The oncology expert, however, will want all follow-up treatment records, but may not be interested in the records setting forth the missed diagnosis.
If there are special factual issues that are key to the case, it is a mistake not to question the expert about this in prep. “Doctor, did you notice the discrepancy between the plaintiff’s testimony about the February 12 visit and the office note of that date?” You will immediately be able to tell if she read it by her response. Explore these areas with questions like, “Does this affect your opinions?” “How will you deal with this?”
Don’t ignore the problems: There is a tendency to want to leave out the “bad stuff” which might negatively affect the opinion. Resist this at all costs! If there are bad facts, you must prepare the doctor for this problem. If it is an insurmountable problem, better to know before the trial expense is incurred.
Dealing with problems means not only providing the relevant material (if it is inevitable that it will come out), and addressing it with the expert. It also means making sure that the expert understands what you need from him or her. Don’t assume that the doctor will grasp the intricacies of needing negligence on a certain date because that is the only date for which there is cause – it is your job to make that clear.
Never hang your expert out to dry: This is closely related to number 2 – if your expert is surprised by information that you should have provided to him, you have embarrassed someone who does not like to be embarrassed. The typical expert likes to be in control. Now you have made him look ridiculous and lose face. He has had to backtrack on his opinion. If your case remains salvageable, you will be lucky if this expert has any desire to help you. More likely, you will not be able to count on help from this doctor.
There is no substitute for forewarning the expert. Even if it is immediately before he testifies, you can still keep the expert on your side. You can say, “Doctor, yesterday my client told me that he had a prior injury that I didn’t know about. It occurred on December 12, 1999, about 6 months before this accident. Does that affect your opinion?” Or, “Doctor, your opinions are based on the object which struck my client’s head weighing 12 pounds, as my client told his doctors. I have now received the object and weighed it and it weighs 14 ounces. Does that change your opinion?”
Now the doctor can work that new information into his opinion, or at least be prepared for it when it surfaces. Experts do not like surprises.
You do not want to turn your medical expert into a legal expert during preparation, but it is important that the doctor understand some of the common legal terms, so he does not inadvertently ruin your case. Here are some common ones that you should be sure to cover in a very simple and clear manner:
1. “Reasonable degree of medical certainty/probability:” This is the standard to which medical opinions must be rendered. You must explain to the doctor that this does not mean 100% or even 90% but rather that in the law, unlike in science, certain/probable means more than 50%. This is a hard concept and must be explained thoroughly or else the doctor will not give you his opinions to the appropriate standard.
2. “Medical malpractice” and “medical negligence” mean the same thing. Some doctors find the term “malpractice” so offensive that their opinions can be shaken when confronted with that term.
3. “Standard of care:” Your expert must understand that the law does not require any doctor to be perfect, or even above average. The “standard of care” is that the doctor must provide the same care as would be provided by a reasonable physician in the same or similar circumstances. [Definition may vary somewhat from state to state – check your jury instructions.]
4. “Maybe,” “I think,” and “possibly:” Draw the connection for your expert between words that are less than 50% and those that are more than 50%. Most states have cases setting forth which words qualify for which category, but you can generally help your expert to listen carefully for words that are less than 50% likely (possible, maybe, might, could be) and those that are more than 50% likely (probable, would be, is, are). Make sure he understands which words support his opinion to a reasonable degree of medical certainty/probability and which do not.
You must warn your expert that some lawyers are not merely interested in discovering opinions, but will also ask questions which are designed to unfairly distort true opinions in the case. This is done by using legal “words of art” that have different meaning from the same medical “words of art.” Some common ones:
1. “Isn’t it a fact, Doctor, that you can’t prove…”
2. “Isn’t it a fact, Doctor, that you don’t know that…”
3. “Isn’t it a fact, Doctor, that one cannot conclude that ‘a’ caused ‘b’…”
To the unwary scientist, the answer to each of these questions might be “yes.” But what that means to the scientist is that one cannot prove causation because one is not 95% (or 90% or 100%) certain. The questions are improper because the legal system and victims are not held to the much higher scientific burden of proof.
Some lawyers will play on these semantic differences between the two professions to attempt to block the truth. Other examples your experts should be warned of:
1. You are not certain, without guessing…
2. Wouldn’t you agree that your opinion is merely your personal view?
3. You would have to speculate…
4. You haven’t conducted a survey, have you, which enables you to know what the average physician would do?
5. Isn’t it just as possible that the outcome would have been different?
The underlined words are those which might alter the import of the expert’s testimony without allowing him or her the benefit of realizing the importance of those words.
There are some special general rules for experts:
1. Review the materials carefully because your opinion will be less valuable (or worthless) if based on an erroneous understanding of the facts.
2. Review the file ahead of time so that you are not surprised by what opposing counsel finds in there.
3. Be sure the expert understands the general “big picture” framework of the case and where she fits in it.
4. Discuss your limited ability to protect him during trial, and stress that he listen to your objections, such as “multiple,” or “confusing,” or “vague as to time,” or “incomplete hypothetical.”
5. Remember that the expert is not the client and conversations conducted to prepare this witness might be discoverable.
6. Experts are typically less receptive than other witnesses to suggestions on demeanor and attitude and therefore require much more pre-testimony care and coaching.