Editor’s note: Second in a two-part series on hospitalists as expert witnesses.
You have officially decided to take the plunge and become an expert witness, but you have never seen the inside of a courtroom, sat for a deposition, or prepared an expert report. This article serves as a primer for all of those things, as well as testifying at trial.
Given the tremendous advantage to be gained by having the expert available to advise the attorney in preparing discovery and responding to the opposing attorney’s discovery, hopefully you have been actively involved in the litigation process and are not trying to get up to speed just weeks or even days before your deposition or the deadline for your expert report.
Steps you can take to become an indispensable expert witness, above and beyond your expert report, deposition, and trial testimony, include:
- Familiarizing yourself with all relevant aspects of the case so that you understand where your opinion fits in;
- Advising the attorney of both favorable and unfavorable facts;
- Identifying key documents that must be obtained;
- Spotting false or weak assumptions and inadequate work by the opposing expert; and/or
- Providing peer-reviewed journal articles and other literature, which decipher complex subjects for the attorney.
Now that you have become an indispensable expert, what needs to be included in your expert report? If the matter is in state court, the content of the expert report will depend on state court rules that vary by jurisdiction and the judge’s own preferences. In federal court, the mandatory signed expert report must contain at least the following six things:
- A complete statement of all opinions the witness will express and the basis and reasons for these opinions;
- The facts or data considered by the witness in forming them;
- Any exhibits that will be used to summarize or support them;
- The witness’s qualifications, including a list of all publications authored in the previous 10 years;
- A list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and
- A statement of the compensation to be paid for the study and testimony in the case.
The report is due at least 90 days before the case is set for trial. The expert then has the opportunity to submit a rebuttal report 30 days after receipt of the opposing expert’s report “solely to contradict or rebut” that report.
In preparing the expert report, it is important to remember that, in essence, everything the expert touches is discoverable by the other side. So before you decide to jot down a note to yourself, consider the fact that that note may need to be produced to the other side. Be especially careful not to jot down editorial comments on documents, particularly deposition transcripts. Imagine the cross-examiner’s delight at finding the penned-in words “problem area” or “smoking gun” or “discuss issue with attorney” next to some unfavorable fact regarding the client. The rule of thumb is “the more unnecessary notes, the longer the deposition.” On the other hand, it may be essential to preserve notes containing calculations, formulas, measurements, and similar documentation to support your opinions.
Additionally, any communications with your attorney and drafts of the report are not privileged. So you need to make sure that it is you—and you alone—who is writing the report.
As mentioned in the first article, testifying under oath, whether in a deposition or trial setting, can be a grueling experience. This is especially true if the deposition is videotaped or the trial is a high-profile case for which media might be present in the courtroom.
Although it may not be granted, you should request a convenient day, time, and place, including your office if you prefer, for your deposition. Some hospitalists prefer to have the deposition at their office because it minimizes the time they are unable to engage in patient care. Other hospitalists prefer to be in a more private setting, such as the opposing counsel’s law firm office, so that their patients are not aware of their expert witness activities.
Typically, the deposition takes place at an attorney’s office, with the attorneys for the parties, the parties themselves, and a court reporter present. The deposition begins with the court reporter swearing in the expert witness so that all of the expert’s answers are under oath.
At the deposition, it is the expert’s job to tell the truth briefly. Telling the truth briefly means providing accurate answers to questions after they are understood—and clarified if necessary—and stating those accurate answers in as short a way as possible without unnecessary adverbs, adjectives, parentheticals, footnotes, asides, qualifications, and other unrequested information. The rule of thumb is that the more information an expert volunteers, the longer the deposition and ability to cross-examine will be.
Often it is helpful to engage in role playing with the attorney to explore likely initial and follow-up questions from opposing counsel. Typically, the format of these questions will include who, what, when, where, why, how, tell us, describe, or explain. You should also review important documents, so that you have a familiarity and comfort with the documents considered part of your analysis and are prepared to interpret them and explain their significance.
At the deposition, you will likely be asked if you reviewed any documents in preparation and, specifically, which ones you examined.
Just as you would in a trial situation, you should pause after a question is asked, to allow your attorney to make an appropriate objection to the question.
It should be noted that the top six answers to most deposition questions are:
- I don’t know;
- I don’t remember;
- I don’t understand the question; and
- I need a break.
Don’t be afraid to answer “yes” or “no” to a yes or no question or to use “I don’t know” when it’s the most accurate answer. The last piece of advice for depositions is to remember at all times that the deposing attorney is not your friend.
Getting ready for trial will be much the same as preparing for the deposition; you want to ensure that your testimony is consistent and protect yourself from potential impeachment. The focus, however, is a different audience; you are educating the judge and jury in a way that will make your testimony understandable and consistent with the jury’s common sense.
You will again be sworn in during both direct and cross-examination. If there is an objection to the form of the question or to your testimony, you should again stop and wait for the judge to instruct whether or not to answer the question and in what manner. Direct examination is likely to include questions based upon your qualifications, methodology, basis or assumptions, and anticipated cross. In responding, remember to look directly at counsel while the question is being asked and then at the jury in explaining the answer.
There is no question that serving as an expert witness is challenging and rewarding work. Are you ready for the challenge?