AAJ Education: 2007 Annual Convention Advocacy Track: Medical Trial Skills College, “Finding and Using Experts” (No. 417-t04)
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care opinions are lengthy, consider having the expert write a summary list of
those violations that he or she can then
use at the deposition. For instance,
when the expert is asked by the defense
if she intends to express any additional
opinions, the expert can review her
summary list and make sure she covered all areas. Of course, the defense
will obtain this list at deposition. It is
better to provide the defense with such
a list than risk the expert forgetting an
important area of testimony.
If the deposition will be videotaped,
make sure the expert knows that the
same rules apply as at trial. Discuss what
them is posed: No guessing allowed. If
the question is hypothetical, he or she
still has an obligation to answer it as fully
and thoughtfully as possible. And it is
perfectly fine to ask for clarification or
to disagree with a part of the question if
it assumes facts that are inaccurate.
Run a search. Ask whether your
expert performed any literature searches.
If so, ask what queries he or she tried,
in what databases, and what results this
produced. Then, run the same searches
yourself. If you see something that the
defense might seize on, make sure to
point it out to your expert, so he or she
is prepared to explain why it isn’t appli-
has testified before, he or she
of care or causation in your particular case.
to wear, how to sit, and where to look (at
the camera, even if the questioner is off
to the side).
Explain legal terminology. Go over
the meaning of “more likely than not”
and “to a reasonable degree of medical
probability/certainty.” Don’t assume
experts know what these phrases mean,
as they are trained to think differently
than the legal standard requires.
Review records. Discuss specific articles the expert has published that may
be related to his or her testimony, and
make sure the testimony is consistent
with what’s in those articles. Remind the
expert that if the defense asks about an
article, he or she can (and should) ask to
look at the article before answering.
Remind the expert that the bases of
his or her opinions include, at a minimum, experience, training, review of
records, medical records (and any films
or studies), depositions, and general
familiarity with the relevant literature
and related professional organizations.
Also, tell the expert to always refer
to the records when a question about
cable to the facts of your case.
Final rundown. To wrap up, cove
the following guidelines with you
expert:
• If given a document, take time to
review it before answering questions
about it.
• Listen to the questions and make
sure you understand them fully
before responding.
• When formulating an answer to a
question, do not assume anything
or read anything into the question
other than what is asked.
• Do not joke or be argumentative
with the questioner.
• Your opinions are not your personal
opinions, or based exclusively on
what you do. Instead, your opinions are your professional opinions
and are based on what a reasonable
physician in that position in that
community would do.
• Be mindful that you might be asked
the same question again at a different time in the deposition, and be
ready to give a consistent answer.
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Dig Deeper
Standard of care. Having covered the
basics, you can address specifics, starting with the expert’s familiarity with the
standard of care in the defendant doctor’s community. Do not assume that just
because the expert has testified before,
he or she knows the standard of care in
your case.
Go over the definition of standard
of care applicable in your jurisdiction.
Don’t just read it to the expert: Have the
expert repeat it to you until he or she
gets it right. If an expert is having difficulty understanding it, or if the definition is complex, write it out: “Here is the
standard of care definition you should
use in reviewing this case.”
Some of the work on familiarity with
the standard of care must be done in
advance—by you. Perform an Internet
search on the locality where the medical negligence occurred. Find out what
you can about the demographics where
the defendant practices, the number of
hospitals and other care facilities in the
area, and medical services availability.
Give this information to the expert.
Research the defendant’s practice.
Check out the hospital’s Web site, information from corporate designees, and
the deposition testimony of the defendant and fact witnesses. Give this information to your expert, and ask him or
her to check whether the facility is similar to the one where he or she practices
or has previously practiced.
Review with the expert the ways his
or her background and experiences are
similar to those of the defendant physician and, therefore, qualify the expert
to comment on the standard of care.
For instance, if the defendant is board-certified (like the expert), remind the
expert that the certification process is
the same throughout the country. The
hospitals where the defendant and the
expert have privileges are likely accredited by the Joint Commission or another
