Expert Witnesses (Continued from page 13)


At the very least, by talking with the phy- sician you may prevent the defendant from using him as an expert later. In our practice, we often meet personally with physicians to discuss cases. Getting through the physician’s front office can be a challenge, and you may have to pay the physician for her time. Still, we have been able to weed out many undesirable cases by discussing them with the treater first, and with less expense. A treating physician may not be ap-


propriate, of course, as a standard of care expert in malpractice cases in which the physician knows the target defendant or if the treater is not well credentialed. Even in malpractice cases, however, a treating physician may be valuable as a damages expert. In situations like these, you will find it useful to maintain a database of potential experts to whom you can turn to review cases for you. Building a database takes time and re-


search, but there are many potential sources.


If there is a physician in your


area with whom you have worked in the past, you might call him and request re- ferrals to potential experts. Get to know the substantive issues of your case, whether they are medical or scientific, and


in the course of your research you will likely come across names of persons who are recognized experts in the field. If the economics of your situation allow (as these experts can be outrageously expensive), you may contact them to review your case. Baltimore Magazine and the Washingto- nian publish several issues each year reporting on the best area physicians, den- tists, lawyers, and so forth. In addition, we have had luck locating experts via the Internet, although you should be careful to avoid services here as well. Verdict re- porters are another excellent source of experts. If a case concerning cardiology malpractice has just been tried to a suc- cessful verdict in your area, you may wish to contact the plaintiff’s experts about reviewing your cardiology case.


Over


time, you will create for yourself a net- work of experts. Be careful, of course, to avoid the appearance of bias by not con- sulting the same experts over and over again.


Before you decide to retain an expert, do a little background checking. Has he been precluded from testifying before? If he holds a license or certification, has it ever been revoked or suspended? Has he ever been sued? Charged with a crime? (Don’t laugh, it happens). If he’s worked as an expert before, how often has he been retained by plaintiffs?


And finally, you


may wish to determine the percentage of the expert’s income that is generated through testifying. What should you provide to your ex- pert for her review?


Ideally, that is a


question for the expert herself to answer. Unfortunately, you will often find your- self talking exclusively with the expert’s secretary in the beginning, and you may have to exercise your best judgment. Phy- sicians particularly do not like to waste time looking at nurse’s notes in a radiol- ogy case. Send only what you think is relevant, and offer to provide additional materials if required. Limiting the records you send also limits the time your expert will spend on the case, keeping your costs down. Once your expert has completed his


review, discuss the case with him. We don’t recommend obtaining a report be- cause reports are discoverable, and the expert’s opinion should be flexible enough to allow for adjustment based on the defendant’s contentions. Again, become as familiar as possible with the substance of your witness’ expertise. You should be able to ask your expert questions designed to build a strong case for your client (or to justify rejecting the client’s case). Keep your expert informed as the case


progresses. Provide him with relevant updated records and a copy of the com- plaint. Talk with him about your opponent’s contentions so he can help you overcome them. Obviously, provide his office with court scheduling information well in advance. You’re not fronting these expenses just to be left with a de bene esse in the end. Maryland now allows discovery of tax


returns and information concerning ex- pert income. Be aware that if you avail yourself of this tactic, it will quickly be used against you. Make sure the risk is worth it. If you expect that defense coun- sel will be seeking this kind of information from your witness, prepare her for the questions. If your expert derives a large portion of her income from plaintiff’s work, consider at the outset whether you really want to use her. If the case settles, let your expert know, not just so he can adjust his calendar, but because he is genuinely interested in knowing how helpful to you he was. If the case is tried, call him and let him know the verdict, even if you lost. Thank him for his help. Common courtesies such as these ensure the expert will work with you again.


And maybe he’ll reduce his rate next time. 16 Trial Reporter Spring 2000


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