Physician, defendant’s attorney, and plaintiff’s attorney offer advice

It could have been your mother up on the stage, admonishing you to “dress neatly, be polite and respectful, and don’t lose your temper.” Instead, J. Kent Mathewson, JD, Christopher T. Hurley, JD, and Charles Carroll IV, MD, were providing the advice during Instructional Course Lecture 105 at the 2008 Annual Meeting.

As part of the course, the presenters participated in a “Boston Legal” questioning/cross-examination for three hypothetical cases. The exercise was designed to showcase specific pitfalls facing expert witnesses, whether they were serving for the plaintiff or the defense.

If education, experience, professional training, and academics are among the factors that make an expert qualified, honesty, availability, affability, skill, and preparation are what make an expert “good.”

“Don’t extol your personal virtues too much,” advised Dr. Carroll. “A dangerous expert is one who claims that he or she doesn’t need to read the literature on the case because no amount of literature could change his or her mind,” agreed Mr. Mathewson.

Common mistakes
Physicians at trial frequently make one or more of the following five common mistakes:

• Using big, important-sounding words. Instead of impressing the jury, using undefined medical jargon is more likely to alienate them.
• Ignoring the jury. An effective medical witness and expert must build a relationship with the jury—not the attorney. Make eye contact with each juror and present testimony as though you were addressing a local community group.
• Offering testimony outside of your expertise. “Stick to what you know,” advised Mr. Mathewson. “If you’re on shaky ground, your lack of confidence will show.”
• Refusing to concede a “given.” Being adversarial and stubborn won’t win you points. Choose your battles carefully, and be willing to concede factual issues.
• Failing to prepare prior to deposition or trial. Being unprepared will make your testimony unimpressive, unpersuasive, and overly long.

Standard of care
During the question period, the panelists discussed the meaning of “standard of care.” Although the accepted definition is “that which a reasonably well-qualified orthopaedic surgeon would do under the same or similar circumstances,” Mr. Hurley advised the audience to “make sure you have a definition in your mind and can articulate it well.” Stumbling over a definition weakens your position and may raise questions in the jurors’ minds.

But it’s also acceptable to not have an opinion, said the attorneys. For example, expert witnesses who are asked about a codefendant or other treating physicians may respond that the question is outside their level of expertise or that they have not reviewed the material from that perspective. Admitting that you aren’t prepared to speak on the issue is also acceptable.

The flip side of that issue—what to do if you have an opinion but aren’t asked about it—was also addressed. “It depends on whose expert you are,” said Mr. Hurley. “Do you want to inject your opinion into the proceedings, which may invite scrutiny of your own care?”

Finally, advised Dr. Carroll, “Get any conflicts out early. You don’t want the fact that you’re an investor in the surgical device involved in the case coming out while you’re on the witness stand.”

Mary Ann Porucznik is managing editor of AAOS Now. She can be reached at porucznik@aaos.org

Ten commandments at trial
If you are serving as an expert witness, following these ten commandments at trial will enhance your credibility and help your case.

• Dress neatly.
• Be polite and respectful to the judge, the jury, the attorneys, the plaintiff, and the defendant.
• Maintain privacy in and out of the courtroom.
• Be prepared for your testimony, recognizing that records may not be available.
• Know the basis of the case as well as your limits.
• Work with the attorney in preparing for the case.
• Maintain a pleasant tone and demeanor.
• Listen to the question and answer it honestly.
• Don’t be argumentative or nonresponsive.
• Make sure the opinions you express at trial are consistent with those you expressed during the discovery deposition and in written documents.