Retaining Good Expert Witnesses in Medical Malpractice Cases
There’s nothing that can sink a medical malpractice case faster than a bad performance by an expert. Those of us who do this work have all been through it — the expert who says one thing to you when you’re evaluating a potential case and during discovery, but then falls apart before your very eyes during their deposition.
Below, we give you some thoughts about finding and retaining good expert witnesses. Although we give these thoughts in the context of medical malpractice litigation, many of our observations apply to other fields of litigation as well.
1. How Do You Find Good Experts?
One of the most vexing questions that medical malpractice lawyers face is how to find good experts. Typically, people who advertise themselves on the internet do not make the most reliable experts. As is discussed below, reusing the same folks over and over again is tempting, but not a good idea.
There are several ways that we have found good experts. Like other firms that specialize in medical malpractice, we have, at times, used services which help us locate good experts. However, these can be expensive, and the quality of the experts is uneven. Sometimes, particularly if the case concerns a special or a narrow issue of medicine, we take a shot at writing an expert who has written a definitive article on the subject matter. If they are willing to support your case, experts of this caliber can be powerful advocates. On the other hand, the fact that an expert has impressive credentials doesn’t mean that he or she will necessarily make a good witness, and our success rate in having doctors we write to, out of nowhere, agree to work with us on a case, is fairly low.
One good avenue for locating experts is national listservs of colleagues. There are myriad such listservs for every litigation specialty, including medical malpractice, and we have found our colleagues in other states are more than happy to offer recommendations regarding potential experts.
Another somewhat underutilized method of finding an expert is through previous litigations. Some of the best experts we have retained have been people we “poached” from defense attorneys. If you are willing to humble yourself and write an expert an email reminding him or her of how unable you were to lay a glove on them during their deposition in the previous case, they may well be tickled enough to review a case for you. Many of the experts used by defense attorneys are not keen on working for plaintiffs. That being said, if they respect you and believe you have a righteous case, they may be willing to help, and, as mentioned above, defense-oriented experts tend to make very strong plaintiff experts.
2. Qualities of a Good Expert
We have been guilty, as many lawyers have, of repeatedly using certain experts in a variety of cases. Usually, it’s because these experts are very talented and because we feel comfortable with them. Sometimes, you can get away with it, but in the vast majority of cases, it’s a mistake to use an expert too many times. As a general rule, we also try to stay away from experts who have worked on too many cases. This is for several reasons. First, and most obviously, because “professional experts” do not typically present well to a jury. In addition, there is typically an overwhelming amount of potential ammunition the opposing party can use on your expert. We have been on both sides of this equation. We have taken depositions of opposing experts where we found deposition transcripts where the experts have taken every potential view and every potential position on every important issue in the case. Those depositions do not go well for the opposing party.
By the same token, there are risks of using experts who have never testified before, although we have found some great experts who did a fantastic job their first time. Nonetheless, it is not uncommon for first-time experts to learn early on in their deposition that this is not the type of work they want to be involved in.
We found that, when you can get them, the best type of experts for plaintiffs are physicians who, generally speaking, don’t feel comfortable — or rarely feel comfortable, testifying for plaintiffs. There are no better words to hear coming from a medical expert on the witness stand, if you’re a plaintiff’s attorney, than “I don’t like lawsuits against doctors, but this case is different.”
Watch out for experts who charge too much money. It’s not just that these experts can become extremely costly during the litigation, but also that their motives may well be questioned by the jury. In fact, if they’re expensive enough, you may want to question them as well.
If you do take on an expert who has a lot of experience testifying, press him or her on whether they have testified on a related issue before and do the work early on to review the expert’s deposition transcripts. You’ll be sorry if you don’t.
3. Thank You for Saying, “No, Thank You”
When you have a new medical malpractice case that you’re hopeful about, it is very easy to let confirmation bias get the better of you. In other words, you may be so eager to take yes for an answer that you decline to push for explanations—perhaps, at least subconsciously, for fear of what you’ll find out. Needless to say, this is a very bad strategy. In the world of medical malpractice, it is not at all uncommon for experts to “support” the case if you are at first blush without a sufficient basis for doing so.
Several years ago, Taylor had a case in which a well-known expert, who he had worked with before, gave full-throated support to the case at the beginning of Taylor’s review. The surgeon had been negligent in how he performed the surgery, the expert assured him. Taylor didn’t push back against the expert, but when he received the opposing party’s expert designation, he sent it to his expert and called him up to ask him his thoughts. Five minutes into that conversation, it became obvious that Taylor’s expert had no good response to the defendant’s designation. That is a terrible experience, both for the lawyer and client. It is also a very costly one.
Anyone doing medical malpractice cases is rejecting a lot more cases than they are taking. When an expert says no and convinces you that you do not have a case, you should thank that expert. When you send an expert a new case, you should explain to them that if they don’t believe in the case and they convince you to reject it, they will be doing you a great service.
This isn’t to say that we reject every case where we get a bad review by an expert. Sometimes, we’ve had cases where more than one expert had said no, but we’ve ultimately been successful after finding a strong expert to support the case. Sometimes, for a variety of reasons, experts disagree. There, too, however, a “no” from an expert can be a gift. When you get a no, make sure to push the expert on all his or her reasons for saying no. Usually, this isn’t because you want to convince that expert — it’s rarely a good idea to try to convince an expert of something he or she doesn’t believe in the first instance — but because it gives you an insight into what the defense will be arguing.
If you are in need of legal guidance with a medical malpractice case, Gideon Asen LLC is the call to make. Contact us today to schedule your confidential consultation with a skilled medical malpractice lawyer.