How Attorneys Can Best Utilize Their Medical Expert Consultant: A Medical Expert’s Perspective: Part 1 of a Monograph.*
Vernon M. Neppe MD, PhD, FRSSAf, DDFAPA*
Expert 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.
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 characteristics are important, and could sometimes be critical, to a case. The balance of importance of each feature may depend on the specific case.
Real expertise involves experience combined with knowledge ultimately translated into being credible to a jury, clear in guidelines for the judge, and able to truly advise the retaining counsel.
Factors that are more obvious are:
• Experience in the forensic arena with appropriate testimony
• Mix of plaintiff and defense testimonies.
• Indestructibility of the expert’s CV.
• Clinical experience with the particular issues relevant to the case.
Less obvious is that clinical expertise is quite separate from medicolegal skills. Look for these specific criteria:
• A general forensic background so as to be able to interpret medical information into probabilities.
• Court system knowledge and awareness of the legal intricacies of the case for that geographic area.
• Understanding the issues including the subtle differences that the opposition counsel may be probing.
• Membership or recognition in appropriate organizations. For example, an epilepsy expert should belong to an organization like the American Epilepsy Society or equivalent, just as a basic for his credibility.
• Similarly specialist recognition is relevant. Sometimes attorneys use phrases like “Are you board certified?” and whereas that is adequate, better is to ask about any specialist certifications, particularly as many medical experts are not trained in the USA, and several areas such as Neuropsychiatry do not have a board certification. In that instance, the expertise can be demonstrated in other ways e.g. listings in Americas Top Doctors.
• Expertise also implies appropriate publications in the area, as well as any teaching or lecturing experience in that discipline.
The more neglected skills
I have seldom been asked by retaining attorneys about whether I possess certain special skills. And yet, in my opinion, these are key considerations:
The medical expert must have the ability to advise his / her counsel carefully.
This involves the ability to find the medical strengths and weaknesses of a case, and to advise in that regard.
This sometimes involves further researching the area but this extra attention can pay enormous dividends for the retaining attorney be (s)he counsel for the defense or the plaintiff in a civil trial or for the prosecution or defendant criminally:
The expert needs to be incisive enough to pick up the limitations and strengths of the case in the context of his / her specialty: These limitations commonly may not be realized by the retaining team initially, because they are not expert physicians.
The expert should be asked about processing skills: speed, thoroughness and incisiveness.
Rapid processing may save costs only when combined with thoroughness about all relevant details, making sufficient notes for use later and the skill at making interpretations and incisively picking pick up the key subtleties of the case.
Some experts are nationally or internationally known in their fields. This can be a major advantage. They charge more. But their knowledge, influence, skills and incisiveness can assist enormously. Even more so the respect they accord compared with their opposition is profound. On the other hand, for small cases, the costs of a nationally reputed expert may not be manageable, and a solid local expert may be quite adequate.
Expertise in testimony
The medical expert’s skills often translate into expertise in court, coherent expressions to a judge, and persuasiveness for a jury. The expert has to be able to communicate information clearly and appropriately. This witness needs to be able to interact with juries effectively when applicable. Interaction skills can sometimes be reflected by expertise in public speaking—this seldom asked about. Moreover, testimony involves situations which frequently requires the expert to quickly and appropriately think on his / her feet.
Positive pointers may be:
• Ability to communicate in conversation with the attorney.
• Experience in public speaking e.g. lecturing reputation, TV and radio.
• Experience in thinking on feet and the ability to respond appropriately.
Evaluate an expert using all these parameters. Do not judge them because they may have a website or are promoted on the Internet. Their practice and skills are what are relevant and the added availability of information is generally advantageous in allowing more appropriate information from which to choose, as opposed to someone who is not organized and does not have the information readily available.
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.
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.