July 1997 Bulletin

How to be an expert expert witness

by Jack C. Childers Jr., MD

While few orthopaedists relish the event, many, if not most at one time or another, find themselves on the stand as an expert witness. This brief article, from the Academy's Committee on Professional Liability, gives a few pointers on how to survive the experience, with your reputation (and ego) intact.

With a nod to the realty profession, the most important aspects of being a good expert witness are preparation, preparation and preparation.

Preparation: Knowledge of the disease process. Do not assume that because you are a physician and the opposing attorney is not, that you will know more about the injury or disease in question than he does. An attorney can, with application, become just as knowledgeable as you in one narrow field of medicine, and his expert witness will have prepared him with questions to probe your knowledge. A little brushing up may be in order. However, when you get on the stand, all your opinions should be based on your "training and experience." If you cite books or articles, you open yourself to being questioned on those sources. This is bad because:

  1. You may not remember everything the cited book or article said, in which case the opposing attorney will certainly demonstrate that to the jury, to your discomfiture.
  2. The source may not agree with you in every particular, in which case the opposing side will impeach your testimony with your own quoted authority.

Preparation: Knowledge of the clinical facts of the particular case. Familiarity with the case is essential. You may be sure that the opposing attorney will be, and will try to demonstrate to the jury that you are not. There will likely be questions such as, "Doctor, what is your opinion of the patient's temperature on postop day three?" If you do not know the case, your lack of knowledge will be painfully apparent to the jury as you try to remember whether there was a significant fever on day three.

Preparation: Discussion with the attorney who has called you to testify. You have the right to know in advance the questions he is going to ask, and he has the right (indeed, the obligation) to know what your answers will be. While he cannot make you a lawyer (any more than you can make him a physician), you should know the effect of your opinions on the outcome. He also should discuss with you the likely questions the opposing side will ask, and your answers.

Preparation: General appearance and demeanor. Sworn testimony is serious business, with money, reputations and society's best attempt at justice on the line. Dress well, but conservatively. If you appear in golfing attire, you send a message to the jury of your casual opinion of the proceeding. (That may be your opinion, but the jury will consider your opinions as casual too, and weigh them accordingly.) Speak distinctly, and respond while looking at the attorney asking you the questions. When asked to explain something to the jury, look at the jury. Use lay language as much as possible, but do not condescend. When technical terms must be used, explain them.

Finally, a few specific tips:

The implication of the first two questions is that every part of a thorough history is required on every patient, which is of course untrue. You may be sure that he will have chosen something you didn't ask. The key here is to recognize the trap at the first question, and to qualify your first answer that, while a thorough history is important, what constitutes a thorough history varies with the patient, disease process, etc.

In addition, be aware of the words "possible," "may," "can" and "suspect" from the attorney cross-examining you. The terms "probable" and "probability" are the important ones to use. Your role as an expert is to assist the jury and help to clarify the issue, not confuse it, as opposing counsel may desire.

Here are a few more tips:

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