In a previous blog post I shared 5 traps that ruin your expert witness practice. Here are 3 testifying traps that ruin your expert witness practice.
Having Skeletons in the Closet
Have you been disciplined by the board of nursing? Spent time in prison after being convicted of a felony? Lost your nursing license for drug offenses? Had to pay a settlement after being convicted to malpractice? Been convicted of a Driving While Under the Influence charge?
Can you take the position that your criminal past is not the business of the attorneys? Hardly. Be aware that these activities will come to light and your credibility can be destroyed. In a case in which I was the defense expert witness, the plaintiff’s expert had used her physician husband’s prescription pad to write orders 22 times for her own use. The judge allowed the jury to hear about this offense. The jury was NOT impressed with this expert.
Remember that everything you have testified about or written reports about is fair game. Opposing counsel may go through the trouble of getting your prior depositions. It is easy to accomplish. Both plaintiff and defense attorneys have data banks of expert depositions. Expert reports may be harder to obtain.
You are sitting in a deposition when the opposing counsel starts asking about other cases you have reviewed on the same issue. He becomes eager to get his hands on these materials and asks you to supply them.
Don’t be so quick to agree. First, pause. Allow your client to enter an objection, or to make a statement like “I’ll take it under advisement.” You should be very concerned about the need to turn over reports or transcripts. This tactic is a fishing expedition, in which the opposing counsel is trying to find a case that is identical to the one you reviewed, and in which your opinion was opposite to the one you’ve now taken.
Cases that look the same on the surface may have different facts or circumstances that change your opinion. If pushed further, let the attorney know it is going to take a long time (and will be expensive to the requesting attorney) if you have to produce whatever it is he is asking for. Talk to your client after the deposition about the request.
But most importantly, recognize that you opinions have to be based on the standard of care. When you vary them according to who is paying you, your credibility will be destroyed.
Not Being Prepared For a Deposition or Trial
Testifying is a serious affair. The attorney asking your questions has probably spent hours preparing- reading and rereading your report, gathering data about you, your website, your prior testimony, and anything else that can be used to attack you.
You may testify months or years after you reviewed the patient’s medical records. The key to successful testifying is preparation, preparation, preparation. Walk into the room at the beginning of your testimony having a firm grasp of the facts. Careful and thorough review will make both you and your client feel more relaxed in what is undoubtedly a tense situation.
Know where to find information in the record. You and the client will do better if you can minimize sorting through paper to find information. Nonetheless, you will be asked questions that you cannot answer without looking at the material in front of you.
Don’t be intimidated by a questioning such as, “What? You can’t remember?” Look at the records. It is not a memory contest. You are permitted to look at the depositions, medical records, and other documents you brought. Opposing counsel wants to shake you. When you use an answer such as the one I will share with you, you may cut short the search through the records: “I can get you that answer if you’d like me to take the time to look through these records.” Sometimes attorneys will respond, “take as much time as you need”. But in other situations, they will move on to other questions.
Avoid these testifying traps that ruin your expert witness practice.
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