Expert Witnesses: How to Choose them and how to Help them. plus, the other side

The Expert Witnesses

 

It is natural to think that a well regarded expert witness who strongly agrees with your case is the answer to your problems. True, but frequently the expert for the other side will argue as strongly, or more strongly. And while it is clear to you that your expert is far better regarded, the jury may be confused as to whom to believe. In a clinical conference your expert would easily prevail, but dueling opinoins often cancel.

This is the dilemma of experts. They are essential to you, but have limits which you must take into account. If possble, supplement them with your charting style and the consultations you obtained.

What should your expert witness be like? Clearly he or she should be well regarded, but a hefty C.V. and high position may count less than their style and their conviction. They need to communicate well. If they are too expressive of alternative interpretations it can leave openings for the defense attorney. When they are attacked by the defense attorney, they should not be too confrontational. This can leave the jury less sure of your case. It reduces the appearance of impartiality and usually gets in the way of careful education of the jury on the matters that have to be explained.

Start as early as possible to secure your expert. Your attorney may need a lot of time to reach them, and get them to review and discuss the case. Then you may find that is not the right expert and have to start again.

Also, it is likely the insurer will have obtained their own opinion. Strangely, they may not tell you about this. It is wise to ask if there is one, and what was said. Sometimes this may be from someone inexperienced in your techniques or even from a different specialty. Look into this possibility, because that opinion may influence insurance company decisions in ways you are unaware of. Plus whatever their opinion was, you want to take it into account.

In general your expert should not be someone you know. Also, they are more credible if they do not testify often, and if their past testimony is not for only the defendant.

This lessens their credibility. Finding someone willing to take the time and to go though the adversity of testimony is not always easy.

How many experts do you need? Usually only one is allowed, but if multiple issues from different specialties are involved there may be more than one. For example, if an infection followed an orthopedic procedure, infectious disease and orthopedics may be needed. The same is true for non clinical issues, for example if your billing is attacked, a coding and billing expert may be needed.

The plaintiffs expert will often present a very distorted counterargument, that can vary widely from standard medical views. Don't think that any position is too outrageous to be taken in a courtroom. What seems far out to you may not seem implausible to the jury, when they are left with two very different experts. Thus the experts effectively cancel. We discussed this in the standard of care page, and your experts arguments will be helped greatly if your chart work and consultations support them.