It’s a truism that in litigation, preparation is key to everything. This saying holds true for your expert witnesses. They may be knowledgeable, and they may be the top experts in their field, but if they aren’t ready for the rigors of deposition, their errors can damage your carefully built case.
When preparing experts for deposition in med-mal cases, I have always laid the groundwork thoroughly—or so I thought. I studied their opinions, their biases, and any angles I expected defense counsel to take. Yet, I still found experts mishandling questions, even easy ones.
After learning certain lessons the hard way, I created a step-by-step process for ensuring that I cover everything and that every relevant document is in the witness’s hands. Since I’ve been using this process, I’ve experienced far fewer unwelcome surprises from experts at their depositions.
The first step is preparing yourself. Before you meet with the expert, review the medical records and previous depositions in the case as well as related literature. The expert doesn’t know the case as well as you do, and it is your job to educate him or her.
If time permits, two expert-prep sessions are optimal. The first, which should take place a week before the deposition, will cover what the expert needs to review and what the focus of the testimony should be. It will also help you ensure that the expert has all the necessary documents and the time to read them—and to do additional research if needed.
The second session should be on the day before, or the day of, the deposition. Use this session to review the materials and reinforce key points of testimony.
Identify the most important documents and be prepared to review them with the expert. Never assume he or she has the records memorized or knows where to locate their main points. For the best results, put together a binder for your expert.
What should the binder contain? If the medical records are voluminous, include the most important ones. If your expert has published on the topic at issue or is relying on other articles, include those. If he or she is basing testimony on information from another expert, such as a life-care planner, include related documents (such as the life-care plan). If a particular deposition transcript is important, add it to this binder. You might want to add medical record outlines or even deposition outlines. The point of the binder is to simplify the most important documents of the case for ease of reference and review for your witness, so do not make it too unwieldy.
Cover all your bases. Write down every document you send to the expert, and ask him or her to check the list and make sure nothing is missing. Do anything you can do to help the expert. I have lost cases because an expert gave a bad answer, but I have never lost a case because I gave an expert too many documents.
Begin with the basics
Start simple. At the beginning of your prep session, explain that you will begin by covering the basics of a deposition and the specifics of the case. Tell the expert, “I hope this is not too simplistic for you, but I do a comprehensive preparation session like this with all my experts.”
Case specifics. Make sure the expert knows the facts of the case. This sounds basic, but you do not want your expert fumbling around on simple facts. Having to review the record for specifics is one thing; not having a clue about the main facts is unacceptable. A fact chronology or time line can be helpful.
Even if you have an experienced expert, err on the side of overpreparation. Even experienced experts find this useful and appreciate your efforts.
When you describe the case, explain who the defendants are, what you know about defense counsel (especially their temperament or style of questioning), the current status of the case, the county and state where the lawsuit is pending, the court name, and the trial date. Explain that you intend to call the expert for live testimony and when you expect this to happen. This early preparation will make the expert feel connected to the case and personally invested in it.
Discuss the defense. Explain that the defense has its own goals for the deposition: to learn the facts and opinions that the expert plans to present; memorialize the expert’s testimony in anticipation of impeaching him or her at trial; and evaluate the expert as a witness. Review your expert’s case file in detail—study every page, because you know the defense will. This includes any notes the expert made, his or her highlighting of testimony or tabbing of records, or research performed.
Review the expert designation or report, including details about how it was created. Familiarize yourself with the expert’s updated curriculum vitae, and ask him or her to bring a copy to the deposition.
Finally, find out if the expert needs anything else before forming a final opinion for deposition. If so, get those materials. This serves two purposes: One, you make sure the expert has everything he or she needs; and two, if the defense asks this same question at deposition, your expert can confidently state that no other materials are necessary.
If the anticipated specific standard of care opinions are lengthy, consider having the expert write a summary list of those violations that he or she can then use at the deposition. For instance, when the expert is asked by the defense if she intends to express any additional opinions, the expert can review her summary list and make sure she covered all areas. Of course, the defense will obtain this list at deposition. It is better to provide the defense with such a list than risk the expert forgetting an important area of testimony.
If the deposition will be videotaped, make sure the expert knows that the same rules apply as at trial. Discuss what to wear, how to sit, and where to look (at the camera, even if the questioner is off to the side).
Explain legal terminology. Go over the meaning of “more likely than not” and “to a reasonable degree of medical probability/certainty.” Don’t assume experts know what these phrases mean, as they are trained to think differently than the legal standard requires.
Review records. Discuss specific articles the expert has published that may be related to his or her testimony, and make sure the testimony is consistent with what’s in those articles. Remind the expert that if the defense asks about an article, he or she can (and should) ask to look at the article before answering.
Remind the expert that the bases of his or her opinions include, at a minimum, experience, training, review of records, medical records (and any films or studies), depositions, and general familiarity with the relevant literature and related professional organizations.
Also, tell the expert to always refer to the records when a question about them is posed: No guessing allowed. If the question is hypothetical, he or she still has an obligation to answer it as fully and thoughtfully as possible. And it is perfectly fine to ask for clarification or to disagree with a part of the question if it assumes facts that are inaccurate.
Run a search. Ask whether your expert performed any literature searches. If so, ask what queries he or she tried, in what databases, and what results this produced. Then, run the same searches yourself. If you see something that the defense might seize on, make sure to point it out to your expert, so he or she is prepared to explain why it isn’t applicable to the facts of your case.
Final rundown. To wrap up, cover the following guidelines with your expert:
- If given a document, take time to review it before answering questions about it.
- Listen to the questions and make sure you understand them fully before responding.
- When formulating an answer to a question, do not assume anything or read anything into the question other than what is asked.
- Do not joke or be argumentative with the questioner.
- Your opinions are not your personal opinions, or based exclusively on what you do. Instead, your opinions are your professional opinions and are based on what a reasonable physician in that position in that community would do.
- Be mindful that you might be asked the same question again at a different time in the deposition, and be ready to give a consistent answer.
Standard of care. Having covered the basics, you can address specifics, starting with the expert’s familiarity with the standard of care in the defendant doctor’s community. Do not assume that just because the expert has testified before, he or she knows the standard of care in your case.
Go over the definition of standard of care applicable in your jurisdiction. Don’t just read it to the expert: Have the expert repeat it to you until he or she gets it right. If an expert is having difficulty understanding it, or if the definition is complex, write it out: “Here is the standard of care definition you should use in reviewing this case.”
Some of the work on familiarity with the standard of care must be done in advance—by you. Perform an Internet search on the locality where the medical negligence occurred. Find out what you can about the demographics where the defendant practices, the number of hospitals and other care facilities in the area, and medical services availability. Give this information to the expert.
Research the defendant’s practice. Check out the hospital’s Web site, information from corporate designees, and the deposition testimony of the defendant and fact witnesses. Give this information to your expert, and ask him or her to check whether the facility is similar to the one where he or she practices or has previously practiced.
Review with the expert the ways his or her background and experiences are similar to those of the defendant physician and, therefore, qualify the expert to comment on the standard of care. For instance, if the defendant is board-certified (like the expert), remind the expert that the certification process is the same throughout the country. The hospitals where the defendant and the expert have privileges are likely accredited by the Joint Commission or another organization. Again, note that requirements for accreditation are the same throughout the country.
The defendant’s practice or other local practices may be affiliated with large, city-based medical organizations that have relationships and referral networks to medical specialists and institutions. These connections may link the expert to the defendant’s medical community or demonstrate how their practices are similar.
The expert’s familiarity with the defendant’s standard of care might also be established by showing that
- both the expert’s and the defendant’s communities are within about the same distance of major hospitals and major trauma centers.
- the defendant and the expert went to similar medical schools and completed similar residency programs.
- the expert teaches medical students who practice all over the country.
- the expert attends continuing medical education programs and refresher courses that are offered nationwide.
- doctors in the defendant’s and expert’s field read the same peer-reviewed medical journals and regularly speak with each other or attend seminars together.
- the expert has trained other doctors in the procedures at issue.
- the key medical issue in the case is not an esoteric problem: Treatment for the patient’s condition was commonly known and has been seen in medical literature and practice for many years.
Causation and damages. If you have designated the witness as an expert on causation and damages, do not gloss over them because your focus is on violations of the standard of care. Explain what causation means in the legal context—for example, a proximate cause versus the proximate cause.
Also, explain the concept of “but for” causation. The expert should be prepared to testify that the negligent act was the cause of the injury and that the injury would not have occurred if it were not for (“but for”) the negligent act.
Have the expert explain to you which damages were caused by negligence, which are unrelated, and whether any damages are due to both negligence and a preexisting condition but cannot be broken down any further. Go over this material before the deposition, and make sure your expert can articulate the differences.
Review the required language for testifying regarding medical bills—“reasonable, necessary, and causally related to the plaintiff’s injuries within a reasonable degree of medical certainty or probability.”
Wrap it up
Make sure to do a final review of all the most important areas you’ve covered with your witness. As part of this review, anticipate the defense’s arguments. A good way to do this is through a mock question-and-answer session. This will allow the expert to become familiar with the defense’s questioning style and will also let you evaluate whether additional preparation is required.
These suggestions are not exhaustive but should give you a good starting point for conducting your expert preparation sessions. A careful review of the relevant documents, an organized way of getting them to your expert, and a grounding in the basics of the law—these are the building blocks of your expert-prep strategy and should become part of your routine trial preparation. The result will be a more relaxed and better-prepared witness, fewer headaches for you, and a stronger case for your client.
Christian C. Mester is a partner at Goldberg, Finnegan & Mester in Silver Spring, Maryland. He can be reached at email@example.com.