Instructions for an “Expert Witness” testifying at trial

• Be well prepared with the facts of the case.
  • Create a “Choronology” of medical records.
  • Review the relevant medical literature.

 

• Look at the lawyer who is questioning you, or at the jury.

 

• Dress /conduct.
  • Wear a conservative suite to trial and leave any fancy jewelry at home.
  • Avoid any “nervous habits” (nervous laughing, smiling at inappropriate times).
  • Respect the seriousness of what you are doing.

 

• Opinion must be held to a reasonable degree of medical probability.

 

• If you are testifying on the “Standard of Care”, you must keep in mind the following things:
  • The “Standard of Care” means degree of skill and diligence that a reasonably prudent physician in the defendant’s specialty would have used under the same circumstances of the case.
  • A doctor breached the “Standard of Care” if he/she does something that a reasonably prudent doctor would not do, or fails to do something that a reasonably prudent doctor would do.
  • A physician is negligent only if he/she breached the “Standard of Care”
  • An expert must be familiar with the “Standard of Care” for the relevant area.

 

• Opinion must be based on facts in the record and reasonable medical probabilities, not guesswork or speculation.

 

• Be prepared for questions about your charges as an expert and take no offense. In addition you may be asked about percentages of your work for the plaintiff vs the defendant.

 

• Be familiar with what you have said in your deposition and be familiar with the expert witness designation as to what you are expected to testify at trial.

 

• You may bring notes with you to the witness stand as to the facts that you believe are the most pertinent.

 

• Medical literature.
  • Medical literature supporting your opinions can assist a jury in deciding whom they should believe.
  • If you admit that an article is a reliable authority you may be cross examined on anything written in the article.
  • You may also be cross examined on anything that you have published.

 

• Speak so the jury can understand.
  • If you use technical language, explain it in lay terms to the jury.

 

• Be a teacher.
  • The expert who best teaches the jury is the expert the jury believes.

 

• Avoid being the expert.
  • Build up your “expert” credentials through your education, experience, and publications, but do not fall into the trap of saying “I am the expert”.

 

• Do not be a “yes man”, but do not get angry at or try to out-lawyer the opposing attorney.
  • You are not an advocate for either side of the case, but you are an advocate for your opinions. 
  • You are free to vigorously defend your opinions, but do not express anger or disdain toward the opposing attorney.
  • If you cannot legitimately answer with a simple yes or no then you can answer such as “I can’t answer without explaining”, and then proceed to answer the question as best you can. 
  • If an attorney is sarcastic with you, do not return the sarcasm.  Be polite, respectful, and firm.  The meaner the attorney gets, the nicer you get.

 

• Admit conferences with the attorney with whom you are working.

 

• Objections.
  • If there is an objection made by any lawyer, be certain to allow the judge to rule on the objection before you answer.
  • If the judge sustains an objection, then you cannot answer.
  • If the judge overrules an objection, then you can answer.

 

• Teaching aides.
  • Have available at the trial medical exhibits which will include the medical records that you have reviewed.
  • Have medical illustrations and/or animations to assist you in explaining things to the jury.

 

• Listen carefully to the question.
  • Attorneys may mischaracterize your prior testimony, pretend to be confused by something you say, or even to misstate facts from the medical records.
  • If you do not understand the question, feel free to ask the attorney to repeat it.
  • If the attorney is mischaracterizing what you said, you can correct him.

 

• Questions outside your area of expertise.
  • If questions are outside your area of expertise, do not be afraid to say that.
  • If you’re asked to express an opinion on some issue for which you are not designated, you can feel free to say “I did not formulate an opinion on the issue”.

 

• Referring to the medical records.
  • Do not be reluctant to refer to the medical records in order to obtain the facts that you need.
  • Do not speculate or guess as to the facts.

 

• Cross-Examination.
  • Sometimes your best opportunity to explain your opinion is on cross-examination.  Take advantage of it.

 

• Commenting on other side’s expert testimony.
  • Sometimes the other side’s expert is disingenuous or, frankly, lying.  Counsel may try to bait you into saying that the other expert is a liar.  Do not take the bait.  You can respond by saying that you strongly disagree with the other side’s expert.