Articles Posted in Trial Strategy

In Seven Costly Mistakes Attorneys Make With Medical Negligence Cases, Dr. Burton Bentley of Elite Medical Experts LLC writes:

Although the rate of negligence claims against medical providers has begun to level off, the cost of litigating these actions has risen dramatically. Vast amounts of time and money are lost when attorneys – whether retained by plaintiff or defense – pursue a non-meritorious case or litigate a worthy case inefficiently. Beware of the following costly errors:

MISTAKE #3: NEGLECTING TO MASTER ALL OF THE RELEVANT MEDICAL FACTS AND TERMS.

In Preparing an Expert Witness for Direct Examination: Time for a Pep Talk, medical expert witness Burton Bentley II, M.D., FAAEM, ELITE MEDICAL EXPERTS, LLC, writes:

Take time to establish the expert’s role within the framework of the case. Remind the expert that he or she is an impartial commentator. His or her loyalty is to the court thus obligating the expert to render honest and unbiased opinions. The expert is neither the accuser nor is he or she responsible for the events that have transpired. The expert alone will not determine the destiny of either party. Rather, the expert will educate and inform the trier of fact in the hope that justice will prevail. While an expert never should advocate opinions with which he or she disagrees, the expert must skillfully articulate and defend the positions that they have already professed. It is a responsibility not to be taken lightly. A compelling expert must exhibit resiliency in the face of tough questioning and remain steadfast in the opinions that they offer. Remind the expert to rely on competent training and years of professional experience. Those strengths are the key to rendering deliberate and assured testimony based soundly upon the medical facts.

Work with the expert to hone their confidence and build their presentation skills. Time spent with a good pep talk — really a “prep-talk” — will be time well spent.

In Preparing an Expert Witness for Direct Examination: Time for a Pep Talk, medical expert witness Burton Bentley II, M.D., FAAEM, ELITE MEDICAL EXPERTS, LLC, writes:

From the perspective of the expert witness, direct examination is not a particularly enjoyable process. The adversarial environment, intensity of focus, and technical nature of the data all combine to add stress to an already demanding situation. Experts themselves also may have some degree of self-doubt, a subliminal fear of being placed under scrutiny magnified by the inherent human tendency to avoid criticizing others. In the absence of a focused mind, even the staunchest expert may melt under the spotlight of skillful direct examination. Consequently, an astute litigator must understand the perspective of the expert and then reinforce the skills that will lead to the expert’s success. Toward this end, a basic pep talk is a good place to begin.

Start with the essentials. Explain that direct examination is a dialogue between the expert and opposing counsel. When the examination occurs at deposition, it may take place at a law firm, an office, or another neutral location. When it occurs at trial, the expert will be in front of a judge and jury. Many experts view deposition as a dress rehearsal for trial, a mistaken perspective that downplays the significance of rigorous preparation and attention. The key is to understand that deposition is simply an extension of the courtroom and that testimony will be under oath and used in court. Consequently, instruct the expert to prepare for deposition and trial with equal intensity. Remind the expert that their behavior, mannerisms, physical appearance, and attire may directly or indirectly influence their perception as a credible expert. Since you are experienced in the techniques necessary to prevail at trial, build teamwork by asking the expert to listen carefully to your suggestions. Similarly, remind the physician that you respect his or her own critical strengths: the skill of speaking to people in stressful situations and the intelligence of being a learned expert. It is the combination of the litigator’s experience and the physician’s abilities that will increase the probability of success in any given case.

Petroleum engineering expert witnesses may consult on petrochemical engineering, horizontal drilling, and enhanced oil recovery. In Competing Views on the Permissible Scope of In-House Expert Witness Discovery at FERC: Without Guidance, FERC Litigants Face Risk and Uncertaintyattorney Jason T. Gray writes for Energybiz.com. He discusses:

The Development of FERC’s Discovery Rules

Competing Views on the Scope of Permissible Discovery of In-House Expert Witness Materials

Design patents expert witnesses may provide reports regarding patent infringement, computer patents, design patents, and international patents and licensing. In DESIGN PATENT PERSPECTIVE: Use of Experts in Design Patent Cases, Robert G. Oake, Jr., answers the questions:

Do I need an expert?”

What issues can an expert testify on?

In Seven Costly Mistakes Attorneys Make With Medical Negligence Cases, Dr. Burton Bentley of Elite Medical Experts LLC writes:

Although the rate of negligence claims against medical providers has begun to level off, the cost of litigating these actions has risen dramatically. Vast amounts of time and money are lost when attorneys – whether retained by plaintiff or defense – pursue a non-meritorious case or litigate a worthy case inefficiently. Beware of the following costly errors:

MISTAKE #2: UTILIZING AN EXPERT WHO IS NOT BOARD-CERTIFIED BY THE AMERICAN BOARD OF MEDICAL SPECIALTIES When credibility and professionalism is paramount, it is surprising that so many firms utilize experts with questionable credentials. Although the internet has provided countless means by which any “expert” can purchase “board certification”, there is only one universally accepted gold-standard for Board Certification: The American Board of Medical Specialties. The ABMS is a non-profit organization that oversees standards and certification for all twenty-four recognized medical and surgical specialties.

In a struggling economy, injury attorneys working on contingency can lower their risk with potential cases in multiple ways; medical chronologies and an initial opinion of case merit are key components in lowering the upfront risk in a medical malpractice case. Mednick Associates, a 20 year veteran of the industry, outlines tactics that can be employed with almost any case.

The current economic effects of running a law firm are increased when working on a contingent basis. Overhead, employee costs and marketing expenses do not slow down when your case load does. Below are three tactics to use when determining the chances a case will have a favorable outcome.

1) Medical Chronologies: Obtaining medical records is always time consuming, but the real bottleneck is in how they arrive. Complex cases with multiple hospital stays, long treatment periods and numerous operations present medical records from varied institutions and with mounds of information to dissect. Having a chronology done for complex cases, saves the attorney, and their staff, time and allows a medical professional to produce a product that can be used throughout the litigation process. Critical facts, if organized, may change ones outlook on a case at the outset, after a summary of the facts are reviewed.

In Event Data Recorders: Proper Evidence Collection in Criminal, Insurance and Tort Liability Investigations, accident investigation expert witness Shawn Gyorke writes:

The mandatory terms of this type of legislation (preservation of physical evidence), which demands the preservation and production of all forensic evidence, can be reinforced by the explicit terms of a corresponding criminal code, wherein law enforcement can be found criminally culpable for failures in compliance. Under the Illinois statute, it is “unlawful for a law enforcement agency or an agent acting on behalf of the law enforcement agency to intentionally fail to comply with the provisions of subsection (a) of Section 116” 3. A violation of this statute constitutes a Class 4 Felony for which an Illinois law enforcement official could be fined up to $25,000 and/or imprisoned for 1 to 3 years.

Many other states, including Alaska, Arkansas and South Carolina4, have similarly worded procedural codes requiring the preservation of all forensic evidence on serious crimes. However, the list of states with legislative requirements for the preservation of evidence expands to an overwhelming majority wherein specific biological or DNA evidence could be collected. While the scope of this additional legislation is not discussed within the confines of this article, it could be argued that only on the rarest of occasions, is blood or other biological material not deposited at the scene of a fatal traffic crash.

At LawTimes.com orthopedic trauma surgery expert Dr. Michael Ford offers an expert witness checklist in orthopedic cases. Ford says sometimes attorneys don’t know what information the expert needs for their case. He offers a checklist here:

http://www.lawtimesnews.com/201303119665/Commentary/Speaker-s-Corner-An-expert-witness-friendly-advice-on-information-he-needs-from-lawyers
Dr. Michael Ford is an orthopedic spine and trauma surgeon at Sunnybrook Health Sciences Centre who has more than 20 years of medical legal experience.

In The Expert Witness: Selecting and Managing A Vital Resource, attorney Dennis Wall, Insurance Claims and Issues Group, Inc., writes on managing expert witnesses. In the article he discusses the “gatekeeper” model for the admission of expert opinion testimony as well as admissible testimony. Mr. Wall is the author of Litigation and Prevention of Insurer Bad Faith and co-author of CAT Claims: Insurance Coverage for Natural and Man-Made Disasters.

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