How Attorneys Can Best Utilize Their Medical Expert Consultant: A Medical Expertís Perspective: Part 3 of a Monograph.*
Vernon M. Neppe MD, PhD, FRSSAf, DDFAPA*
Notes received from retaining attorneys are extremely variable. Adequate preparation can not only save the expert time, but can clarify the case such that the expert can perform optimally.
There are costs that are necessary:
Rather obvious is the review of the appropriate medical records. All records that are relevant to the expertís testimony should be supplied. Sometimes, with key witnesses, this may mean all documents pertinent to the case. Whereas this may not be entirely ideal, pragmatism plays a role. The attorney should be careful whom (s)he chooses for that task, as doing this for five or six experts could easily make costs overwhelming. Generally, in each case, there may be one or two key witnesses. The others may be declared in a limited way and receive all relevant documents for the specific area of expertise only. They should carefully obtain only what is relevant information for the specific declaration.
The easiest cost saver is a well constructed file of pertinent pages with indexes as well as a brief summary letter containing only facts, e.g. date of alleged incident, demographics, alleged claims and questions to be answered.
This can save enormous time for the witnessóas well as result in less expert costs.
Some attorneys prepare a chronology. This is often extremely useful. This should only be given after the expert has examined the notes, so that the expert would have formed his / her opinion beforehand.
Expertsí styles vary. For example, my specific preferences may not be generalizable, particularly if the expert is not very computer savvy. Personally, I like to summarize information as I read it, extracting key information. This I will do digitally by dictation, generally referencing dates, pages and medical professionals. This saves enormous time in reviewing cases later.
I also like to use text documents (e.g. in Microsoft Word). This allows me to fashion the detail and extract what is relevant without wasting time rewriting.
In this regard, scanning by the attorney is worthwhile, particularly if text (as opposed to pictures [e.g. TIFF, PICT]) is produced. This text is editable in summary documents, and can be searched almost instantaneously. It becomes a great time saver.
Depositions should always be ordered in text form so they can have the relevant facets extracted. Hard copies should also be available.
The attorney should ensure that the expert knows what has been duplicated on CD and paper.
However, scanned computerized material supplied as PDFs that cannot be converted into text has an enormous downside of taking up time in locating particular pages. Consequently, an index is essential for any scanned non-text documents, and additionally duplicate hard copies of the text are valuable.
The logic is: Save the expensive expert time by using a paralegal assistant to do as much acceptable spade work as possible. But supply the expert with a CD of the notes and (s)he can carry it around on his / her computer while traveling.
Speed versus thoroughness and adequate interpretation time
The expert should be asked about speed and thoroughness.
Speed of processing notes can be a time saver and therefore a money saver. If the expert is known to do tasks quickly that is excellent but it ultimately will save costs only if the speed necessarily involves thoroughness about essentials. Thoroughness implies not compromising essential time and ensuring all relevant details are processed. This means that those documents that need detail should be looked at thoroughly. The good expert makes sufficient notes initially, to save great time later.
However, often there are pages that are supplied for completeness, but which the competent expert will recognize can be dealt with more cursorily, without compromising the case.
Examination of notes has a profoundly important, but sometimes neglected element: The expert must allocate some time to make interpretations. This is often neglected. This is sometimes the most relevant time investment in the whole case: The forensic expert plays the role of scientific detective and needs to pick up subtleties.
Incisive thinking is a particularly useful quality: The expert effectively is part of the medical chess game.
The expert will be asked about literature in testimony and have to justify it. You need to be aware of this. It adds costs. But a smart law firm can prepare the appropriate key articles beginning with key abstracts asking the expert what (s)he needs.
Commonly, the key features of such articles are listed in a good abstract, or a summary which is disclosed to both sides and has been made by the retaining attorneys. Carefully done and when performed within the framework of appropriate rules, this can save significant costs.
Moreover, the retained expert can often do a broad search of Index Medicus on a subject in 2-4 hours.
If the expert is not using a bibliographic computerized program (s)he should be. It is a great time saver.
Adequate preparation of medical and other relevant documents sent to experts can make the difference to the outcome of a case. The interchange is active, and do not ignore the expertís needs for other relevant data.