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is natural to think that a well regarded expert witness who strongly
agrees with your case is the answer to your problems. True, but frequently
the expert for the other side will argue as strongly, or more strongly.
And while it is clear to you that your expert is far better regarded,
the jury may be confused as to whom to believe. In a clinical conference
your expert would easily prevail, but dueling opinoins often cancel.
This is the dilemma of experts. They are essential to you, but
have limits which you must take into account. If possble, supplement
them with your charting style and the consultations you obtained.
What should your expert witness be like? Clearly he or she should
be well regarded, but a hefty C.V. and high position may count less
than their style and their conviction. They need to communicate
well. If they are too expressive of alternative interpretations
it can leave openings for the defense attorney. When they are attacked
by the defense attorney, they should not be too confrontational.
This can leave the jury less sure of your case. It reduces the appearance
of impartiality and usually gets in the way of careful education
of the jury on the matters that have to be explained.
Start as early as possible to secure your expert. Your attorney
may need a lot of time to reach them, and get them to review and
discuss the case. Then you may find that is not the right expert
and have to start again.
Also, it is likely the insurer will have obtained their own opinion.
Strangely, they may not tell you about this. It is wise to ask if
there is one, and what was said. Sometimes this may be from someone
inexperienced in your techniques or even from a different specialty.
Look into this possibility, because that opinion may influence insurance
company decisions in ways you are unaware of. Plus whatever their
opinion was, you want to take it into account.
In general your expert should not be someone you know. Also, they
are more credible if they do not testify often, and if their past
testimony is not for only the defendant. This lessens their credibility.
Finding someone willing to take the time and to go though the adversity
of testimony is not always easy.
How many experts do you need? Usually only one is allowed, but
if multiple issues from different specialties are involved there
may be more than one. For example, if an infection followed an orthopedic
procedure, infectious disease and orthopedics may be needed. The
same is true for non clinical issues, for example if your billing
is attacked, a coding and billing expert may be needed.
The plaintiffs expert will often present a very distorted counterargument,
that can vary widely from standard medical views. Don't think that
any position is too outrageous to be taken in a courtroom. What
seems far out to you may not seem implausible to the jury, when
they are left with two very different experts. Thus the experts
effectively cancel. We discussed this in the standard of care page,
and your experts arguments will be helped greatly if your chart
work and consultations support them.
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