Prepare carefully for your day in court
Be prepared for questions about your credibility
It sounds exciting to be an expert witness until you take the stand in court and the attorney for the other side questions your credibility, B.K. Kizziar asserts.
That’s why she advises case managers who are interested in becoming expert witnesses to learn how the legal system works and be prepared for what they may encounter in a case.
"It would be a good idea to talk to someone who is an expert witness. It doesn’t have to be a case manager, but it should be someone in the medical field," says Kizziar, owner of B.K. and Associates, a Southlake, TX, case management consulting and life care planning firm.
Start by learning about the legal system and how it works, Kizziar advises. Consider joining the American Association of Legal Nurse Consultants (www.aalnc.org), an organization that promotes the advancement of registered nurses consulting in the legal arena. The organization offers classes, periodicals, and a certification program.
Case management expert witnesses may be called in cases in which a case manager is not among the defendants, but Kizziar is quick to point out that no one should feel bad about testifying against someone in their field.
"I want my field to be considered a profession that includes only those who are practicing in an appropriate way," she says.
The testimony of a case manager expert witness focuses on the standards of practice, the standards of care, and the processes a prudent case manager follows.
"The witness is not necessarily pointing a finger and saying the case manger did something wrong. We’re just pointing out what all of us should be doing already as standard practice," she says.
When you make yourself available as an expert witness, in most cases, a plaintiff’s attorney will contact you and ask for an off-the-record opinion. The attorney won’t give out confidential information in the initial interview but will ask if you feel comfortable testifying in a particular type of case. For instance, he or she might ask if you have expertise in cases where a patient was discharged early with bad outcomes.
The plaintiff is the most likely side to have a case management expert witness, but in high-profile, critical cases, both sides usually call expert witnesses, Kizziar says.
In some cases, the defense may consult an expert and if they don’t like what they hear, may decide not to call the expert as a witness. If they get a different story from what the plaintiff’s expert witness says, they may call their witness to create some doubt. Then the judge or jury must decide which expert witness is more credible in their testimony.
If you are hired, you’ll be asked to create a written report to be presented to the court. The report should include the facts of the case, cause-and-effect, and details establishing and explaining your opinion.
The report should include a cover letter describing the objectives of the report, a bibliography, a list of other professionals consulted, and a list of discovery items reviewed that led to the opinion.
Expert witnesses are compensated either by a retainer paid up front and a fee based on court appearance and time or by an hourly flat rate including court time and preparation. You should present your bill to the attorney who hires you. Do not include it in your written report to the court.
The length of time a preparation takes depends on the case. As an expert witness, you’ll have access to all the documentation and information made available to the attorney during the discovery, and you should carefully review it before your court appearance.
"I’ve had multiple boxes delivered for some cases or received a large packet in my mail box in other cases. It all depends on the case and the circumstances of the case," she says.
After the written report has been submitted and reviewed by both sides in the case, there are two ways that an expert delivers his or her opinion, Kizziar points out:
• A deposition is less formal than courtroom testimony and is taken in the presence of attorneys from both sides and a court reporter, and, in some cases, a video camera. It is considered to be a discovery device that the opposing side will use to learn what information you will be providing during the trial. This testimony is given under oath and may be reviewed by the judge and jury during the trial.
You’ll be given a transcript of your deposition and required to review and sign it, attesting to its accuracy.
• Courtroom testimony is given under oath before the judge and jury in support of the written report. It is acceptable to reference the written report to clarify information, but the expert can’t just read the report, Kizziar adds.
When there are expert witnesses on both sides, the case may involve a "battle of experts," she says. That’s why it is critical to analyze every detail of the other side’s report and to make sure the attorney on your side is fully apprised of the nuances of your opinion, Kizziar adds.
Each expert witness will be called on to justify his or her areas of expertise against those of the opposing expert.
When you are called on to testify, it’s important to be perceived as knowledgeable and self-assured without appearing cocky. Orient your testimony toward the jury and speak in easily understood terms, Kizziar says.
Keep in mind that the jury members are not clinicians and explain any professional jargon you use in easily understood language, she says.
Avoid being argumentative with the other side’s attorney when he or she challenges your opinion during cross-examination, she adds.
Daubert rule affects expert witnesses testimony
Many states have adopted the federal court system’s "Daubert rule" to determine the reliability of expert witnesses. The four components of the Daubert test are:
- The science can be and has been tested.
- The science has been subjected to peer review and publication.
- There is a known or potential error rate of the science.
- There is a general acceptance of the science in the relevant scientific community.
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