Optimal medical expert witness management often makes the difference between successfully managing your case or undermining it. Over the years I have identified ten common mistakes attorneys make when hiring and managing experts. Any one of these mistakes can have significant consequences ranging from overspending to losing your case. Here's the list of ten:
Mistake 1: Preliminary Case Screening
Given the challenges associated with medical-legal cases, from the very beginning it is always prudent to hire an experience medical-legal physician consultant to screen your case for merit whether you are for the plaintiff or defense. Hire a consulting expert immediately to help you understand the nature of your case, its issues, and its strengths and weaknesses. With a consulting physician, you retain the attorney/client privilege; their work is non-discoverable, and you are able to discuss the case more thoroughly, including case strategy. Your consultant will identify the medical issues, address standard of care, causation and damages, will identify the names of culpable people and entities, and will make a list of the necessary expert specialties to retain. This is an invaluable initial step in the pre-litigation process.
Mistake 2: Delay
It is one of the most common mistakes attorneys make: Waiting too long to locate, or once located, engage an expert. Lawyers have a mistaken belief that they will be able to find an expert quickly. They fail to consider that finding the best expert can take time particularly in a complex case and when multiple experts are needed. Once found, experts must be engaged quickly to insure that they aren't booked by opposing counsel.
Sometimes, lawyers inherit the delay when they take over a case from someone else. However, most of the time, it is easy to avoid the 11th hour time crunch simply by starting early.
How early? Start your search as soon as you have received your initial screening review and you have decided to take the case. After this initial review you should be in a position to know what specialties are involved and what kinds of expert you need. Start your search early and you will find the right expert, and you will increase your chances that the ideal experts will be available to you.
Mistake 3: Deficiency
The third mistake is to be deficient in the details about the kind of experts you need. Know the facts of your case and how they apply to the most propitious expert selection. For example, what kind of cardiologist does your case require? Do you need a clinical cardiologist, an interventional cardiologist, an invasive cardiologist, an electrophysiologist, a nuclear medicine cardiologist, an expert echocardiographer cardiologist, and so on. It makes a big difference, and will speak directly to your expert's relevance to the case, and ultimately his or her credibility.
Be prepared to discuss these case needs with the medical experts when you speak to them on the phone. You need to be able to qualify them during that phone call and by reviewing their curriculum vitae. For example, it is not enough to get a cardiologist on the phone, tell him/her about the case and then accept that person on the basis of his or her telling you, "sure, I can help you, send the case along." Although this physician might be familiar with the issues, the science, or the procedures, they may not be directly involved with it on a regular basis. They may have learned about it in their training or they may have done it years earlier, and in their minds they know that they can probably do justice to it. But that might not hold up in court. When that expert undergoes voir dire, he or she could be disqualified if they are not deemed to be a bonafide expert in the area.
Don't forget to assess for potential conflicts, names of defendants, trial date conflicts, geographic requirements, budget limitations and other potential conflicts.
Mistake 4: Incomplete Communication
The most important conversation you have with your expert witnesses may be your first. Leave key questions unanswered up front and they may come back to haunt you later. In that first phone call it is crucial that you lay out precisely what you expect, what the expert agrees or disagrees with, and what your experts' expectations and understandings of the assignment are. Try to discuss all the parameters in the initial conversation. This includes the key dates in the case, clarifying the expert's fees, discussing whether or not a written report is required, what records will be sent and when, what is the best way to communicate, phone, mail, email, any special locality rules that the experts should be aware of, and any other issues the attorney deems appropriate.
Consider that the expert may not remember the substance of this phone call. Physicians are busy people. They might see hundreds of cases by the time they see yours. Don't assume that they remember everything that was discussed by phone. Either remind them again in your cover letter attached to the medical records, ensure that they have written down the main points from your conversation, or if you are concerned that these things will later turn up to your detriment in court, ask them to call you again so that you can refresh their memory on the pHone.
Mistake 5: Deliberate Disregard
The fifth mistake is not getting to know your expert. If possible check with other attorneys who have worked with this expert before. Go on-line and see what cases he has testified on. Make sure that this physician has not been disqualified from giving testimony previously. Make sure that there are no proverbial skeletons in the expert's closet: too many lawsuits, no loss of license, no disciplinary action by their state Medical Board, no loss of hospital privileges.
If you can, speak more than once to your potential expert by phone. Even better, visit with your experts to better assess their ability to communicate, their appearance, and ultimately what you feel would be their demeanor in court. If a visit is not possible, then get them on SKYPE for a face-to-face meeting. You want experts who can explain complex terminology in plain language the judge and jury will understand. And you want experts who will hold up under a withering cross examination.
Mistake 6: Square Peg into a Round Hole
How do you fit a square expert witness into a round case? You don't. Any yet, many attorneys make the mistake of trying to tailor their theory of the case to fit the expert's opinion rather than to build their case based on their experts' views about the case. It is a huge mistake to attempt to have your experts read from a pre-existing script, and will often backfire on you when opposing counsel easily shoots holes through it. Rather, listen closely to your experts and then, together, formulate the strongest possible position.
Mistake 7: False Assumptions
Once you have engaged an expert, the fourth mistake is to assume that everything is going along well or will turn out all right. The problem with this approach is that you may find out too late that all is not as you supposed. Experts sometimes change or alter their opinions without telling you. Sometimes experts decide in their minds that they are just too busy to continue with a case, or that they do not have time to travel for testimony, or that the trial date conflicts with other plans they have. It is important for you to lay out these possibilities from the beginning so that they know what your expectations are before they get too deeply into a cases.
As soon as you perceive a problem of any kind, be sure you point it out to the expert and offer suggestions for how to improve. Review and critique every document, draft , and email communication as soon as you receive it from the expert and address problems as soon as they arise.
Mistake 8: Detachment
Lawyers commit the mistake of detachment by failing to work closely with an expert on outlines and deadlines and to communicate their expectations early and often. Detachment can result in a weak expert report, strained relations and excessive costs.
Avoid this by meeting with and reviewing the expert's work early and often. Establish a schedule well in advance of deadlines to work with the expert on outlines and drafts. Help the expert find the right tone for the report and define its breadth and depth. Work closely with the expert so that the final product is acceptable to both you and your expert.
A related problem comes from a lawyer's fear of confronting an expert if problems do arise. Knowing the expert will soon be testifying and not wanting to create friction, the attorney may choose to say nothing. This only perpetuates and exacerbates the problem. Talk through problems as soon as they arise. Be frank and address your concerns. Use good management skills and good communication skills. It is important to maintain a good rapport with your experts, and thus, a good working relationship. Make sure that your experts feel they are supported by you. Never alienate your expert, even if issues have arisen. You always want to be in tune with your expert. Use your negotiating skills to make it right.
Mistake 9: Detail
This is the mistake of not thoroughly preparing the expert before a deposition or trial. If the lawyer does not work with the expert in advance – and far enough in advance – the expert will often not be adequately prepared for deposition or trial.
The solution is simple: Establish a schedule early on, allowing ample time to work with the expert by phone, SKYPE or face-to-face to prepare thoroughly for testifying. Prepare, prepare, prepare.
A corollary of this is: this is not the time to skimp on expert fees. There is nothing more important to your case than well-prepared experts. Make sure that they lean towards over-estimating their preparation time. Experts rarely have difficulty with the medical or surgical principals of the case. Experts get hurt by not knowing the facts of the case inside and out. They should know these facts as well as opposing counsel knows them.
Mistake 10: Outstanding Expert Payables
Not paying the expert on time is, along with mistake 1 and 2, the most common mistake lawyers commit – and the most easily avoidable. It happens when the expert's invoice for services he or she performed in a timely manner for you and your client sits neglected on your desk, or when you wait too long to object to the expert's charges, or when an insurer or client is slow to pay.
Lawyers often fail to consider the expert's circumstances. One lawyer at a major firm actually said, "I don't feel the need to pay the experts on time because this is not how they make their living anyway."
This is unfair to the expert who is an independent fee-based consultant working on your behalf. Worse, it sets up an irritant than can interfere with your relationship with the expert and affect the quality of the expert's work. And it can be a big distraction to your experts and ultimately, to your case.
The solution is simple: Pay experts' bills on a timely basis or pursuant to the expert's payment policy. Submit their invoices to your client as soon as you receive them. If your client's payment is late, look into it. If you foresee payment problems in advance, let the experts know about them before you retain them.
Summary:
Unfortunately, committing any number of these mistakes is all too common. Fortunately, avoiding them is easy and generally straightforward. And if you do commit one, then the earlier you make amends the better off your case will be. Get your case screened by a competent physician with ample forensic experience. Act early and decisively in hiring and managing experts. Inspect what you expect. Always pay close attention to your expert's perspective. Most importantly, communicate with your experts regularly.
