AAOS Bulletin - October, 2006

The expert witness as advocate

Pleading the cause of standards of care

By Kathleen Delaney

The dictionary definition of an advocate is an individual who pleads the cause of another. Advocates associated with legal proceedings are typically the attorneys. In a medical liability lawsuit, the defense attorney advocates adherence to the established standard of care, while the plaintiff’s attorney advocates alleged negligence.

But there are other advocates in medical liability lawsuits. Orthopaedic surgeons who serve as expert witnesses—either for the defense or the plaintiff—may also be advocates. Expert witnesses advocate the boundaries of standard of care.

By definition, the attorney advocate is not impartial. The role of both defense and plaintiff attorneys is to focus on their clients. An expert witness advocate, however, focuses on a position—the standard of care—and permits the attorneys to link that position with their clients.

This shift in focus requires that the expert witness provide fair and impartial testimony. Successful advocacy may result from a partnership between expert witness and attorney based on credibility, consistency and thorough preparation.

Establishing credibility
Orthopaedic expert witnesses establish credibility through their credentials and testimony on matters relevant to their clinical experience and knowledge. This basis of credibility enables an expert witness to more clearly advocate the medical issues in dispute.

Another component of credibility arises from detachment, such as having no perceived conflicts of interest. Juries are more likely to believe expert witnesses who do not have an existing relationship with any party to the lawsuit. An absence of conflicts of interest frees the jury to concentrate on what the expert witness has to say, not why the expert witness is testifying.

Attorneys, on the other hand, have an obligation to learn as much as possible about the medical issues in dispute. The expert witness may help educate counsel, thus increasing the attorney’s level of credibility with the jury. Together, the expert witness and the attorney are advocates to the jury, presenting an understanding of what the medical issues are and the established standard of care.

Finally, expert witnesses gain credibility by clearly stating the basis for the position advocated. Whether the source of an opinion is clinical, scientific or personal, impartial testimony demands that expert witnesses demonstrate the basis for their position.

Maintaining consistency
Orthopaedic expert witnesses maintain their credibility when they advocate consistent positions. Opposing counsel can—and no doubt will—search past depositions to determine whether an expert witness’s current testimony is consistent with previous testimony. Inconsistency signals that the expert witness may be advocating on behalf of a client, not a position.

Previous testimony can also occur within the same legal matter. Details provided in pretrial depositions or written opinions can either impeach or bolster expert witness testimony. Prior to appearing at trial, an expert witness should review all personal testimony, including written opinions and depositions. Altering any portion of previous testimony, even the smallest detail, can plant seeds of doubt in a jury and leave a negative impression of the expert witness. Conversely, supporting consistent testimony with additional details may reinforce credibility.

Together, the attorney and expert witness present clear testimony that advocates a consistent position to the jury. The attorney is responsible for how the content of testimony is presented to the jury. The expert witness is responsible for the consistency of the testimony.

Thorough preparation
No substitute exists for thorough preparation. The attorney is responsible for supplying the expert witness with all of the medical records on a timely basis, so that the expert witness can review them adequately. The expert witness is responsible not only for knowing the contents of the medical records, but also for questioning the attorney if it appears that the medical records have not been produced.

In addition, expert witnesses have the obligation not to testify if they believe that pertinent information has been withheld. Expert witnesses may assume that opposing counsel has thorough knowledge of the medical records and will pounce on any opportunity to show a lack of preparation. Thorough review of the medical records contributes to being a credible and consistent advocate.

Thorough preparation may also include a discussion with counsel on how to speak the jury’s “language.” Because the jury’s understanding of a position can limit the effectiveness of advocacy, a witness’s word choices, speech cadence and voice level are important contributors to increasing the jury’s understanding. Eye contact and body language during direct examination and cross-examination also affect a jury’s perception of the testimony. A witness’s nonverbal behavior when off the witness stand also contributes to how the jury perceives and accepts an advocate’s message.

Finally, expert witnesses should know the opposing counsel’s arguments and be prepared to refute them. A thoroughly prepared expert witness assumes that the expert for the opposition is equally prepared. When a jury is faced with conflicting expert witness testimony, it must decide which expert witness is more believable in setting the standard of care. Witnesses should partner with the attorney to strengthen advocacy efforts and promote perceptions of credibility, consistency and thorough preparation.

Meeting the standard
The AAOS Standards of Professionalism on Orthopaedic Expert Witness Testimony require that orthopaedic expert witnesses provide opinions and/or factual testimony in a fair and impartial manner. When expert witnesses testify with credibility, consistency and thorough preparation, they can be seen as fair and impartial advocates.

Kathleen Delaney is the professional compliance program coordinator in the AAOS office of general counsel. She can be reached at aaosexpertwitness@aaos.org

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