Articles Posted in Researching Experts

In How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Demsey advises attorneys on how to find the right fit with an expert witness. In complex factual situations such as medical malpractice cases Demsey states that “Too often the initial consideration is not well thought-out.” Finding the right medical malpractice expert witness begins with meeting the expert.

This has several purposes, one of which is to evaluate this person’s ability to analyze, communicate, and deal with adversity (e.g cross-examination). Make sure your theories and personality mesh with the expert. This is someone with whom you will be associated for the duration of the lawsuit, so it should be someone with whom you feel comfortable in approaching and discussing various aspects of the case. In addition, it will help you to know whether or not he or she will have the time and willingness to help you prepare and conduct your trial.

From How to Use Experts to Prove the Plaintiff’s Case, Thomas M. Dempsey, The Advocate Magazine, January 2008.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with document preparation.

There are costs that are necessary:

Rather obvious is the review of the appropriate medical records. All records that are relevant to the expert’s testimony should be supplied. Sometimes, with key witnesses, this may mean all documents pertinent to the case. Whereas this may not be entirely ideal, pragmatism plays a role. The attorney should be careful whom (s)he chooses for that task, as doing this for five or six experts could easily make costs overwhelming. Generally, in each case, there may be one or two key witnesses. The others may be declared in a limited way and receive all relevant documents for the specific area of expertise only. They should carefully obtain only what is relevant information for the specific declaration. The easiest cost saver is a well constructed file of pertinent pages with indexes as well as a brief summary letter containing only facts, e.g. date of alleged incident, demographics, alleged claims and questions to be answered.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with balanced opinions.

The medical expert’s perception of the strengths and weaknesses of a case must be balanced and not rejected because his / her opinion disagrees with that of the retaining attorney’s. The expert’s opinions may involve multiple different areas of the case. For example, the expert may describe significant brain damage and this may not be something the defense attorney may want to hear; on the other hand, he may describe the profound limitations of ascribing causality to the injury that is being alleged. Alternatively, his / her perception of brain damage may actually be less than that of an opposition expert so (s)he may still be so declared!

More to follow on assisting civil litigation attorneys with medical experts from Dr. Neppe, Director, Pacific Neuropsychiatric Institute, Seattle, WA, www.brainvoyage.com.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with commitment to an expert.

You also want to ensure that the expert is as adequately prepared as possible for the specific tasks (s)he is assigned to do. This may be testamentary, but very often it is consultative, or writing a declaration, report or letter. This may require adequate educating on the legal aspects of the case. This can sometimes be time consuming particularly if the expert is not experienced or specifically forensically trained. This can easily be more costly than retaining a more expensive, more experienced and knowledgeable expert.

It is necessary at the appropriate time to declare the expert carefully. The exact wording should be discussed carefully with the expert consultant prior to such submissions as it may effect all his / her future testimony. Clearly, adverse opinions on certain issues may limit the expert as to being declared only in the area where (s)he can address the strengths of the case

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with commitment to an expert.

You have retained your expert: The commitment to an expert is made more permanent once the expert is declared or the definite decision is made to declare him / her at an appropriate later time (e.g. when experts need to be made public). You have decided you will proceed with that expert and you need to utilize as many techniques as possible to optimize having that expert.

Clearly, one wants to save the expert time, because that will save the attorney money. But do not make the error of trying a short cut with your key expert. Always ensure (s)he is provided with everything that could possibly be deemed necessary to ensure an adequate educated well-thought out opinion that the other side cannot negate due to not disclosing everything necessary.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with the preliminaries of retaining an expert.

Choosing a medical expert consultant requires critical evaluations of numerous features beyond obvious medical expertise. This is even more so for the key witnesses in a case. Medical experts need to be located, assessed for preliminary suitability, retained and later declared as an expert. The procedure is very active to maximize the value of your medical expert consultant. Once one has decided that a particular expert is the logical one to retain, one has to assess the match of the medical aspects of a case with the expert’s suitability in the context of the opinions (s)he will express. This means that retaining an expert does not mean a commitment to proceed with that expert through the case.

A carefully worded pre-retaining phase may ensue where the attorney very briefly describes the key facts in the case. The expert usually will not be able to express an opinion at that stage. Sometimes, however, I have been able to indicate to attorneys that the particular case does not fall within my experience range or my expertise; and at times, I indicate the converse.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony depends on finding an appropriate match for your case. This excerpt deals with credibility of your expert.

Choices are complicated by knowing that a credible expert will express an honest opinion. This may lead to the expert expressing an opinion that is unfavorable to the particular case. However, this may not be a disadvantage. The key is knowing your case’s strengths and limitations.

You should respect your expert’s thoughts. (S)He is generally trying to assist you, and his / her adverse opinion usually is well founded. If the expert’s opinion is entirely adverse, this may be a reason not to declare him / her further and find another expert provided a gray zone of opinion legitimately exists for that issue. On the other hand, it may be a strong clue, unless there are other cogent circumstances, to cut one’s losses and to settle the case or not bring it to trial or even not to file it.

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony begins by finding an appropriate match.

Clearly there are specifics that lead some experts to be retained above others. Expertise in a health care specialty is only one component to consider. Respect in the medical discipline is often a major index of success as an expert. The components of such esteem are predicated on peer respect, appropriate qualifications and recognition in the area.

Several other qualities should be relatively self-evident, but appear commonly neglected. All

In How Attorneys Can Best Utilize Their Medical Expert Witness: A Medical Expert’s Perspective, Dr. Vernon M. Neppe MD, PhD, FRSSAf, FAPA, writes that expert witness testimony begins by finding an appropriate match.

Finding the correct medicolegal expert for a case is clearly dependent on, not only their expertise in the area, but their forensic proficiency at review, advisory and testamentary levels, as well as the respect they will command, their geographic location and the costs involved. Attorneys have to find medicolegal experts very carefully. Choices not only relate to skills in court, but the assistance that can be given prior to any testimony.

In choosing, one should create a list of what is needed and a shortlist of who can fill that role. You should list the strengths and limitations of your potential expert. This involves not only knowledge and expertise with the specific medical problems being analyzed, but skills such as incisive thinking, quick responsiveness, communication skills, responsibility, integrity and ability to work efficiently but rapidly.

In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on striving for an objective tone on direct and cross examination.

Otherwise strong experts sometimes may fail to present their testimony in a professional manner. On direct examintation, they are friendly and expansive with the attorney, but on cross examination, they clam up or become adversarial. This change in tone (or even body language) can create an impression that the expert is a “hired gun” ranther than an independent and objective authority.

Attorneys should help experts to convey objectivity when they testify. In practice, this means that experts should answer questions – on both direct and cross examination – in a way that conveys that they are helping the fact finder to understand their opinion fully. There is no reason for experts to change their demeanor when responding to direct or cross examination, thereby reminding the court that they were hired by one of the parties and not the other.