How Attorneys Can Best Utilize Their Medical Expert Consultant: A Medical Expert’s Perspective: Part 7 of a Monograph.*
Vernon M. Neppe MD, PhD, FRSSAf, DDFAPA*
The trial begins earlier than the trial
It is just before testimony and there are many issues you have to deal with. Time is short, so is sleep. And you want to make sure your expert is as adequately prepared as he can be. Preparation of the expert for trial is like ensuring the athlete is ready for the real game. Even though most cases settle before testimony is necessary, proper preparation as if the expert is going to testify can set the attorney up to reach a better settlement.
Time preparation beforehand
The most common difficulty may be neglecting your witness before trial. Make sure the expert knows how (s)he has been declared. The limits should be discussed carefully with the witness. And make sure your expert is actively preparing. You may need to be teaching, if necessary too!
The following elements are relevant:
The expert consultant should have composed all notes and summarized key points.
(S)he must know the key points (s)he plans to make, and any key admissions or comments made at discovery.
Teaching the expert how to avoid pitfalls
The attorney needs to ensure that the expert understands the tricks that the other attorney may use.
He needs to teach the expert, if necessary.
This should be a given, but many “expert consultants” are not experts in the medicolegal side, though they know a great deal about their expertise.
These are examples of pitfalls that the expert should be aware of during cross-examination:
1. The compound question.
2. The hypothetical question.
3. The non-differentiation of quantified information which may or may not require standardized testing. For example, history-taking is often amplified indirectly via written or computerized questionnaires : This is a legitimate clinical data acquisition technique, though not standardized for a population.
In contrast, many psychological tests require sample comparisons and specific standardized norms or even percentile scores, because individual responses are based on how others of the same age, sex and demographics would respond.
4. The demonstration to the jury of all the negative data in the evaluation (if defense) or positive data (if plaintiff). Prioritizing is critical.
5. The taking the expert out of his / her area of expertise.
6. The minimal misquoting of information.
7. The misinterpretation of data.
8. The attempt to effectively allow another witness to testify by quoting him.
9. The consolidation of the other side’s witness by making him / her sound great by the expert.
10. The quoting of something said by the expert that contradicts what (s)he may be arguing.
11. The use of wrong time periods based on general questions. The global quoting of a result without taking specifics into account.
Allow the expert the opportunity to suggest key areas to concentrate on during testimony. Give him / her opportunities to ask about limitations in the case and therefore modify those questions.
Ensure that the expert has had a trial run with the questions composed by the attorney. (S)He may want to have these questions audio taped and answer each in turn recording and testing his / her answers, or tell them to friends who play the role of a mock jury.
(S)He should be allowed time to discuss his / her results and difficulties with the attorney thereafter.
Know that the other side will try to compromise your witness using the strongest possible area of weakness: Anticipate the limitations of your case.
Similarly, allow the expert point out to the attorney highlights of his / her background for later amplification.commonly, attorneys may think they have the key facts, but the wood may be missed from the trees. The greater the expertise, the more important this fact.
Planning for the court trial
It is often useful or critical to call the expert the night before or see him / her briefly at court pre-testimony. (S)He can be updated of events or possible new questions.
Knowing exactly when the expert will testify is critical. The expert is expensive and delays can increase costs enormously. Sometimes this is beyond the attorney’s control but the best possible estimate should be made to save the expert time and you money.
The expert may use a computer or video or slides may have been prepared. The court should know about these in advance, if necessary.
One must always be aware to adequately give your expert appropriate time. If you feel (s)he needs 2 hours, ensure that (s)he has 4 hours. If the testimony takes less time, have another fact witness waiting so that the trial can continue.
Take into account lunch breaks of possibly 1 1/2 hours, tea breaks of what may end up to be 15 or 20 minutes and a string of requests to a judge to grant or not grant particular motions. Effectively 2 hours of evidence can easily mean 4 hours on the stand. If your expert is valuable enough (s)he must have that period of time otherwise you may be wasting him. Give him / her the chance to shine, and to communicate with the jury and form a bond with them.
Establish principles of how to communicate
The attorney must know how to pick up signs from the expert that say “Move elsewhere” or “let me amplify” or “Ask me about this cross-examination question in Redirect examination”.
This area is frequently neglected. Often it just means listening to words, or body language. A discussion before testimony may allow understanding of special questions to ask or not ask during testimony.
Games are not usually decided in the bottom of the ninth. The playoffs began pre-trial and these are the early innings. Besides anything, adequate preparation allows you the confidence to enter the later stages of the game and pitch flawlessly.