The Unprepared Expert

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LNCtips.com: The Unprepared Expert


If you're an expert LNC
or work with experts in any way, you know the importance of expert preparation for depositions and trial.  However, there are still some experts that are woefully unprepared to testify.  Here are three examples of experts who were not prepared to provide his or her opinions.

1) The first expert brought to his deposition some written materials consisting of medical records with hand-written notes in the margins.  When the opposing attorney asked to see the materials, the expert replied they were "for my eyes only."  Unfortunately for the expert, this case was in a state in which all materials brought to the deposition by the deponent must be produced to all parties.  Even worse for the expert, the hand-written notes included disparaging remarks about the plaintiff.  "This guy sounds like a crack pot" and "He's a drug seeker."  To make a bad situation even worse, the expert was testifying on behalf of the plaintiff.  By writing those derogatory remarks, the expert torpedoed his own client. Moral of the story: If you're an expert, know the state statutes governing testimony at depositions and trials.  Your attorney should provide you with this information but if not, call to ask.

2) The second expert seemed well-prepared to offer her opinions when she was deposed.  However, she had failed to share all of her opinions prior to the deposition with the attorney who hired her.  It's not uncommon for experts to alter their initial opinions somewhat as the case progresses, and that's what happened in this case.  A few weeks before she was deposed, the attorney's staff provided the expert with some additional medical records about the plaintiff's current clinical condition.  Based on those records, the expert (who was hired by the defense) opined that the plaintiff's damages were much worse than she initially thought.  The defense attorney was blind-sided by this testimony.  Moral of the story: If you're an expert who has a change of opinion, you're not prepared for your deposition until you speak with the attorney who hired you.  If you work in a law firm, instruct experts to contact you or the attorney whenever they have changes in their opinions.  In some states, experts must provide a written report with a complete statement of all their opinions.  The above situation is less likely to occur in those states.

3)  The third expert got the facts of the case mixed up with another case.  He got the gender of the patient and other details about the case wrong.  This expert erred by relying solely on his memory, which apparently wasn't very good.  He also brought no materials to the deposition to prompt his memory.  His credibility was destroyed and the attorney later hired another expert to replace him.  Moral of the story: In most situations, it's acceptable for experts to bring a clean copy (meaning no notes in the margins) of the medical records and a factual (meaning no opinions) timeline of events for reference. Of course, experts should verify with the attorney that it's OK to bring those materials.

The three situations have one common denominator - the expert wasn't properly prepared by the hiring attorney.  If you're an expert LNC, insist on a meeting or phone conference with the attorney prior to depositions and trial.

...Katy Jones