Over the decades, people have asked what I do for a living. When asked, most people get to answer with simple replies: accountant, doctor, carpenter, stock broker, architect, etc. When I explain what I do for a living, most people immediately think it’s all about experts testifying.
That’s far from reality. In some ways, that’s like thinking the majority of an iceberg is the part above the water line. The truth is that the testimony part is a relatively small percentage of what expert’s actually do and most cases don’t even progress that far. Just like the vast majority of the “iceberg” is the part that’s under the water, with experts, it’s mostly the review of medical and legal documents/radiologic studies/microscopic slides, consulting with attorneys, drafting reports, and sometimes even performing an exam.
You never know what an expert will find.
A great example is a story my father, an MD, told me about a case he had reviewed. He was able to determine conclusively that a doctor had rewritten his chart. That’s a bold statement; many attorneys suspect it but it’s typically not provable. Pharmaceutical companies used to give doctors lined paper on which to write their office notes. Of course, the paper would have the name of the company’s drug--which they wanted doctors to prescribe. My father was able to prove that the doctor had rewritten his office chart because the notes were written on pharmaceutical company paper for a drug that didn’t exist at the time the chart was supposedly written. In another case, upon looking at an angioplasty video, an interventional cardiologist was able to determine that dye was injected while the catheter was being advanced, causing arterial wall dissection. In another, an oto(rhino)laryngologist looking at a postoperative sinus study was (shockingly) able to prove that the surgeon had broken through the cribriform plate and had instead resected brain tissue. A more recent story involves a defense case in which I caught that the plaintiff’s allegation that their child was burned by too-hot water, was actually child abuse by the plaintiff who intentionally dunked the child in the hot water. The point is that experts can find things even experienced attorneys can miss. It might be something mundane like finding another defendant who should be named, that the injury preexisted, or that a missing item is dispositive.
Written reports are much more important than many people realize. A clear, medically sound, forceful report can result in settlement. I’m a firm believer in investing the time into a written report—the kind of report that makes the other side realize they should settle. In the end, such a report puts the case in a better posture to settle and, of course, to avoid having to pay an expert to do further work, including to testify.
Many attorneys fail to avail themselves of their expert’s advice as the case progresses. At depositions, the other side’s attorney is assessing not only the strengths of the case, but the strength of the opposing attorney. Does he/she know how to ask the right questions and follow-ups . . . or can he/she barely pronounce the medical terminology? Afterward, the opposing attorney will ponder settlement versus trial. The more educated the attorney—and the more facile with the medicine and concepts—the greater the likelihood of good settlement. This means getting prepped by your expert and seeking advice without delay.
In the end, good investigations, strong written reports, and ongoing expert consultation are key to maximizing outcomes.