How Attorneys Can Best Utilize Their Medical Expert Consultant: A Medical Expert’s Perspective: Part 8 of a Monograph.*
Vernon M. Neppe MD, PhD, FRSSAf, DDFAPA*
The key to success
Your expert has come this far. You know the points (s)he wants to make. Let him her make them. And if something has come up that needs emphasis, ensure (s)he speaks to that as well. And if you want to eliminate issues ensure (s)he knows about it.
Build up your expert
Always build up your expert’s credibility. It is insufficient to just demonstrate to the jury (s)he is an expert in the field.
If you are able you must demonstrate two other key facts:
1. Your expert is actually much better than the other side’s comparative witness. This may mean asking questions which can then be asked when cross-examining the other side’s expert to demonstrate, for example, membership of a group, significant honors or great experience.
2. This means adequate pretrial preparation so the contrast can go smoothly. On the other hand, you may want to diminish this side knowing your expert may not be as good or as expert. But this also needs exact planning so as to present your expert in the best light possible.
3. You should demonstrate your expert’s significant expertise such that (s)he has profound credibility with the jury.
4. This process may take ten or more minutes, if necessary. It is all preparation for the key points. It is time well spent.
The most effective approach is to initially impressively introduce the expert; then during his / her answering of questions, emphasize his / her special skills relating to the relevant issue being discussed. A simplistic example: “Doctor, you’re also a psychiatrist” “Yes” and “And psychiatrists specialize in areas such as depression and anxiety” “Yes” “And this is what you have described here” “Yes”.
This way the biography takes less time and there is emphasis of the expert’s expertise in the areas of relevance.
The key issues
Don’t lose sight of the cardinal issues the expert wants to make.
You may want to identify key points to the jury by asking your witness:
Do you think this is very relevant in this case?
This grounds the jury.
Be prepared to always focus on the key issue of what happened and why. How can the expert defend this? How can you attack another issue? How can the attorney use the expert in that regard? How can the expert play aggressive chess and subtly indicate the limitations of the opposing expert or experts?
Use your expert specifically in his / her key area of expertise. If you take him / her out of his / her key area of expertise, you know that the opposition will pounce on this. You are not board certified in this area, you are not a specialist in this area. This may lead to compromises of how much the jury believes the expert even in his / her real area of expertise. To make the expert extremely broad e.g. to make a neurologist or psychiatrist into a neuroradiologist, can sometimes work because they can argue they see MRI films. On the other hand, they must be prepared to express their limitations.
Errors to avoid during Direct Examination
The retaining attorney should never get caught up on a particular test. (S)He should realize that a medical expert is basing his / her opinion on everything that (s)he has received on the history, on the examination, on the special investigation and on the loads of data, that (s)he may have been sent relating to the particular patient. The only time the retaining attorney should focus on a particular test is to score a home run. For example, DNA evidence might be quite definitive or a specific radiological X-ray or MRI evidence may be extremely important, particularly as juries will respond visually to such information.
On the other hand, it is rare for a psychological test such as the MMPI, to be critically important enough to focus on. It will only bore the jury. Instead broader questions pertaining to personality function may be asked.
Similarly to focus on a particular complex symptom or condition that is not highly relevant, and that the jury cannot understand, may be self-defeating. The attorney should not be asking about the key features of “dyspraxia”, but if he/ she did, the expert could say “this is complex concept, but it is important simply because it may reflect other practical difficulties in the function of the brain.” The attorney can then focus on the relevant impaired functions from that part of the brain, and the expert would tell the jury about the problems the patient experiences, as a consequence. When asked how that information was derived, the expert may mention briefly that one of the features was that the patient had exhibited that special kind of dyspraxia, which cued him in to the particular kinds of malfunction.
He would use simple phrases like “this is what the patient has difficulty doing …”. “This is why I say this ….” . “This will impact in the following ways…”. “This is how it can be solved …”. This is attorney—expert teamwork at its best. And also reflects the preplanning that goes into a good symphony!
Obviously you have told the expert to directly address the jury. And each expert has his style.
The expert may at times be brief. But you should allow him / her to communicate little TV shorts of thirty seconds sometimes to a minute at a time, getting across his / her point to the jury, sometimes using a metaphor. However, where possible, the expert should let the retaining attorney know which metaphors will be used as otherwise an excellent comparison can fail because of lack of communication. On the other hand, the expert still should be allowed the spontaneity that goes with persuasive thinking on his / her feet. It is his / her job to give the jury a sense of priorities, of understanding and of perspective.
I personally like to give jurors metaphors they can understand. I like to engage the jury. I then subtly follow through and indicate why they should accept my expert opinion on it. I sometimes even find that actually telling juries that they may get conflicting opinions helps them resolve issues. But again, team-work is always useful when it can be done, and prepared metaphors allow the attorney-expert dyad to work in tandem.
The direct examination is where many cases have been won and lost. A bad expert may not only destroy the expert testimony but compromise your whole case to the jury. A good expert gives you several runs lead for the final onslaught on the expert: The cross examination in the ninth inning.