The demands of expert work
For those doctors who think expert witness work is an easy way to make a bit of extra money, they should rethink. It requires a very specific skillset – extensive knowledge of the medical practice that is under scrutiny, impeccable judgment, clarity of thought process and of expression (both oral and written), a robust temperament to withstand the inevitable pounding that goes hand-inhand with cross-examination in the witness box and, finally, and perhaps most importantly, lack of a hidden agenda.
The agenda may be a conviction that doctors shouldn’t be criticised, or that this doctor shouldn’t be criticised, or that patients should be entitled to higher standards of care, or that claimants drain the healthcare system of money. The list is endless but the point is that these agendas are dangerous, as they have the potential to cloud judgment and introduce bias into the process.
As a lawyer who has worked on both sides of the fence (to continue the adversarial language) but has exclusively represented doctors and hospitals for the last 14 years, it occurs to me that maybe a simple communication gap between the medical and legal professions has led to a misunderstanding about what expert witness work is all about. I consider there to be two myths surrounding expert work.
The first myth is that defence lawyers automatically defend claims. We don’t, and to that extent ‘defence lawyer’ is a misnomer. We would better be described as investigators and risk assessors. We spend our days investigating liability from a neutral standpoint and deciding whether the risk of the claimant succeeding at trial is a risk that our client should buy off, and at what cost. The term ‘defence lawyer’ is entirely appropriate for those cases that go to trial, but in truth, not many do.
The second myth is that lawyers’ ideas of a good expert is one who will tell us what we want to hear. Wrong again. Undeniably, every lawyer’s idea of a dream day in the office (sad though it may sound) is receiving a supportive report from an expert with vast clinical experience and an impeccable history of medicolegal reporting, but that is beside the point. The experts we need are experts who will carry out a thorough review of all of the evidence and tell us, at an early stage, what their honest view is about the care provided so that we can advise our client properly and deal with the consequences of that opinion promptly.
A litigator’s definition of disaster is finding out at a pre-trial conference, when most of both parties’ legal costs – which will now be substantial – have already been incurred, that the expert is wavering in his previously robust view about the standard of care provided. Even more catastrophic is when he gets cold feet in the witness box.