Having reviewed those qualities that will make you a welcome addition to any defense team and therefore someone whom attorneys will retain, you must also appreciate that there are certain qualities to which juries generally respond and which therefore are worth discussing. Some of what is addressed below may overlap with values already reviewed; the importance of those qualities cannot be overstated. Because a significant percentage of malpractice lawsuits are resolved by trial, a malpractice expert should expect to appear before a jury, rendering the following discussion extremely relevant.
Preparation, preparation, preparation. Without question, an effective presentation at trial requires effective preparation before trial. Although this may seem all too obvious and perhaps terribly simplistic, the importance of preparation cannot be stressed enough. Just because you previously reviewed the materials after agreeing to serve as a liability expert does not mean that you are prepared to testify in court. Just because you once understood the details of the case does not mean that you still understand them months (if not years) later. Just because you authored a well-crafted expert report does not mean that you are ready to appear before a jury. Quality testimony requires quality preparation.
Typically, retaining counsel will review the matter with you prior to your court appearance. This might occur weeks or, more likely, days (or even the day) before you are scheduled to appear in court. Meaningful participation in such a conference with counsel requires that you devote the time necessary, usually several hours, to reacquaint yourself with the subject matter prior to that meeting. If you are able to discuss the obscure details of the case with the retaining attorney just prior to trial, it is likely that you will be able to do so in court. That does not mean that you should not conduct a review on your own the day or evening before your actual appearance; you should. If the facts are somewhat complex, more time must be devoted to your preparation. If the facts are relatively uncomplicated, less time will be required. Either way, however, the key is time. It must be invested in preparation before you step foot inside the courtroom. If your preparation is lacking, so too will be your presentation. Not only will retaining counsel recognize (and ultimately disdain) your failure to adequately prepare but so too will opposing counsel. If that occurs, the adverse attorney, sensing your vulnerability, will do everything possible to exploit your lack of familiarity with the details of the case. Your “stock” as an expert at trial will drop precipitously from the jury’s perspective, and as a result, the jurors will likely reject your opinions in whole or in significant part.
If you cannot or will not devote the time necessary to adequately prepare for your testimony, it matters little that you authored a fabulous expert report or that you gave compelling deposition testimony. In the end, the trial is what matters, and your presentation at trial must be convincing. If you have done your homework, the likelihood is that you will capably handle direct and cross-examination; if you have not, you will be ineffective at best and embarrassed at worst.
Once you have mentally prepared for courtroom testimony, it is important that you do so physically. Chances are that the case in which you are involved has itself generated a fair amount of review material. As discussed in previous sections, the documents supplied to you for consideration during the course of the litigation likely have included patient records, interrogatory answers, and deposition transcripts. It is also likely that the documents forwarded to you have not been received all at one time. An initial package of material was probably supplied at the time of your retention and supplemental mailings sent intermittently thereafter. As a result, documents were reviewed by you at various points in time, multiple reports were prepared (if required), and the materials were then placed in some convenient (or perhaps not so convenient) spot in your office or home, not to be seen or heard from again unless absolutely necessary.
After dusting off the documents and discussing the case with retaining counsel, you may be confronted with the task of somehow physically transporting materials to court. Although not always so, defense attorneys typically will ask that you produce your file in court. If it were just a matter of having the documents with you while you testify, their container or how they were placed in the container would make little difference. Unfortunately, it is not that simple.
In my view, the whole point of bringing your file to court is two-pronged. When adverse counsel on cross-examination asks if you brought your file with you, the better answer is always yes. Never be in the position of saying that you did not bring your file or, almost as bad, that you only brought part of your file. Either answer may prove problematic.
Adverse counsel may gain an advantage if a defense expert indicates during cross-examination that he neglected to bring his file to court. Although defense counsel may object to examination of the defense expert regarding the whereabouts of the expert’s file, judges generally permit such cross-examination. Accordingly, unless limited by the court, counsel’s questioning might include some of the following:
• “Don’t those documents constitute your file?”
• “Aren’t those the same materials that you used to formulate your opinions in this case?”
• “Didn’t you expect that you would be asked questions about those materials?”
• “Didn’t you know to bring your file to court?”
• “Didn’t you bring those materials to your deposition?”
• “Well, where are they?”
• “Did you discard them?”
It does not matter how the expert answers any one of these questions. Frankly, the negative implication of these queries alone is significant enough that no answer will completely neutralize their impact. By asking these questions (and others along this vein), trial counsel suggests to the jury that the expert has done something wrong: Perhaps the expert has deliberately tried to keep something from them. Although that may not be the case, jurors do not know this. They assume that the attorney would not be asking about such things unless there was a point to it. And indeed there is. Counsel wants to put the expert on the defensive, set the expert back on his heels, and make the expert look bad. Mission accomplished.
If you bring only those portions of your file that you deem important or those that can be easily carried into the courtroom or that neatly fit into your briefcase, cross-examination may still be uncomfortable. In addition to some of the questions noted above, you may be confronted with the following examination:
• “Were you instructed to leave certain documents behind?”
• “Aren’t the missing materials part of the file supplied to you by counsel for review?”
• “Did you bring only those documents that support your position?”
• “The materials you left at home don’t support your opinions in this case, do they?”
You do not want to be fielding questions like this at the outset of cross-examination. They will do nothing but distract and perhaps unnerve you before substantive examination by the plaintiff’s counsel really begins. In addition, the jurors will view you with a certain degree of skepticism, and your capacity to convince them of the merits of your opinions may be compromised.
The second reason that your file should be with you in court is more substantive. Certain documents, especially those marked as trial exhibits by counsel, will be in court and therefore available to you should the need arise. However, all of the material you reviewed will not be so marked and may not be readily produced by the retaining lawyer during your testimony. As a result, should questioning make it necessary to refer to or quote from a particular document, you will benefit from having that document with you for easy reference rather than assuming it is already in court.
It naturally follows that effective use of your file requires some form of organization. Bringing file documents into the courtroom is only half the battle. The other half is document management. If your file is disorganized, so too may be your answers to questions that require reference to a discrete portion of that file. Counsel enjoy watching opposing experts squirm on the stand as they rifle through their file in an effort to locate the source of a point made during testimony. Although confident in a recalled fact, when asked to locate the piece of paper on which the information appears, an otherwise capable expert looks downright incompetent shuffling papers in an attempt to find the supporting document. That is not to say that the document does not exist or that the expert has fabricated the fact. In all likelihood, the opposite is true. But if the expert is unable to find the item in the morass of material brought to court, the damage has been done. The jury will think that the testimony of the expert is based on sheer fantasy. Again, mission accomplished.
To avoid this pitfall, it is strongly recommended that you organize the file before your court appearance. Use any system with which you are comfortable. Some experts like working with two- or three-ring binders. The binders have dividers with tabs that identify the material in each section. One binder may contain the plaintiff’s discovery, such as interrogatory answers and deposition transcripts. A second binder may contain similar material produced on behalf of the defendant. Additional binders may contain the plaintiff’s treatment records.
Obviously, organization like this requires an investment of additional time. Perhaps office staff can assist in the preparation of binders. It does not matter which type of system you select, but you must have a system that maximizes your effectiveness in court. A disorganized expert runs the risk of being exposed as such, and frankly, this is a risk you should not take.