How to Present the Defense Medical Expert at Trial
By Christine Tailer
Perhaps better called “getting to know your witness” and learning how to direct or control his testimony
GET TO KNOW WITNESS
- Why did witness get into this particular field
- Special certifications or degrees
- Typical professional day/week (personal slips in)
DISCUSS OUTLINE OF TESTIMONY
- Bottom line opinion
- Quite likely will not refer to report
- Will refer to pre-marked exhibits in EXHIBIT BINDER
- Will refer to each exhibit reviewed and what found of
significance in each exhibit
- Will ask legal litany only once
(all opinions will be given within a reasonable degree of medical certainly and will be based on education,
training and experience as well as the records reviewed and the examination performed in this case)
DIRECT EXAMINATION OF THE WITNESS
Keep it short (15 to 20 minutes)
Into fact that witness and I have worked together many times before
Ask if the fact that we work together often will affect his testimony
Ask what he does for a living
Ask why he chose that career
What educational requirements required of career
Ask him to describe a typical professional day
Get Opinion Testimony Out Up Front!
Ask that the doctor give all of his opinions with that litany within a reasonable degree of medical certainly,
based on education, training and experience as well as the records reviewed and the examination performed in
Ask if reviewed materials and performed an examination of the Plaintiff
What opinion did he form after review and exam Opinion #1
Then set up the basis of that opinion
Walk through each important record and ask what found of significance in each
You control the examination by handing the doctor each exhibit
Doctor, did you review the ER records?
Now turn to Exhibit “A” in the binder before you
Are those the ER records you reviewed?
What did you find of significance as you looked through those records?
Why was that _____ important?
Lets take a look now at Exhibit “B” ………
x-rays and MRI’s on lite box or close up on video
Did you also perform a hands on physical examination?
What is the purpose of a hands on exam?
How do our perform the exam?
Did you examine the neck?
What did you find of significance in the neck exam?
Why was that finding important?
Did you examine the low back? …
Then, after you have walked through all the relevant records and the hands on exam
ASK FOR THAT ALL IMPORTANT OPINION ONCE AGAIN Opinion #2
AND THEN ASK WHY THE DOCTOR HOLDS THAT OPINION Opinion #3
Then, assuming that Plaintiff’s doctor has a differing opinion, ask the doctor if he is aware of that opinion and
ask why he disagrees with that doctor.
FINALLY ASK THE DOCTOR HOW STRONGLY HE HOLDS HIS OPINION Opinion #4
And Lo and Behold!!! You have elicited that all important opinion testimony FOUR times!!!!
Remember, whenever you hear the doctor use a medical word, ask him what it means.
Do not be shy. ASK THE DOCTOR TO EXPLAIN EVERYTHING !!!!!!
This is particularly important during the exam portion of testimony
Remember, experts are people too and that is your goal, to make your expert seem like a likeable, believable