45 Trial Lawyer • Fall 2023 first, before chasing the specialist’s opinion. While your case may need a specialist to ultimately testify at trial, that does not mean that a good medical doctor cannot review the case first. Although an internal medicine doctor may not be a surgeon or oncologist, they generally understand the basics of nearly all medical procedures and have access to their colleagues who practice in the specific fields and can run things by them. You can get an initial review for often a fracture of the cost and then confidently go out and seek the specialist’s opinion knowing that you have a strong case. If the generalist tells you they think your case is difficult or untenable, you can make the decision to decline the case at that juncture or seek out a second opinion. Often times a good generalist doctor or nurse will only charge around $750 to $1,000 for their services. If they don’t think the case has merit and you’re convinced from their explanation, you’ve saved $4,000. If the generalist does think the case has merit, you haven’t wasted the $1,000 because they likely will have a specialist to refer you to who they have spoken with and, even if not, you will have a better understanding of the complexities of the medicine from your consultation. When you do meet with your specialist, you will already have a strong basis of understanding the medicine and will be able to hit the ground running at the initial interview. Making your expert comfortable Just like jurors, experts are people, too. If you are working with an expert for the first time, it is important to develop your relationship with them so they can start to trust you and believe in your client’s case as much as you do. If you are working with an expert who has never been retained before, given what they have heard from the insurance industry’s endless bashing of plaintiff’s lawyers, they may be suspect of you and hold prejudices against you, even before working with you. They may think you are trying to manipulate them or exploit their medical degree somehow. Also, many doctors who serve as expert witnesses have a tendency to procrastinate. They may be very busy in their own practice and have either placed your case on the backburner or have not had significant time to review it in advance of your first meeting. They may attempt to review your client’s records on the fly while they are speaking with you. I believe there is a good solution to both of these problems — meet your expert in person for the first appointment. Before Covid-19 forced everyone to learn how to Zoom or Skype, I used to fly out to meet all of my experts face to face as I got their initial insights on the case. Does it cost you more time and money to do this? Yes. But several hundred dollars for an airline ticket is a drop in the bucket as to what the expert will charge over the total life of the case. Also, knowing you are arriving at their office for a face-to-face meeting, that you have paid the expert for in advance, will make nearly certain that your expert will have reviewed the file thoroughly in advance. Meeting the expert in person will demonstrate how important the case is to you and your client, and will allow you to start gaining rapport with the expert. Meeting the expert face-to-face will not only evidence your commitment to the case to them, but will allow you to see what a jury will see and hear as well. Does your expert come across as confident or do they appear squirrely and are unable to hold and maintain eye contact? Is the expert noncommittal or vacillating a great deal about your case? If so, you will be the first to pick-up on this at a face-to-face meeting and know if it is enough to warrant finding a new expert altogether or simply something to keep in mind as the case progresses. Admittedly, I have gotten away from this slightly in the new world of Zoom, but I still strive do this with my main standard of care expert and causation expert in nearly every case. While Oregon state court does not require expert disclosures or depositions, if my expert is going to be testifying in federal court or in a jurisdiction where there are expert disclosures, I outline for them what the disclosures will be. I tell them their report is their document and I only want them to put information into the report that they believe in and are comfortable with. Often times, inexperienced experts have professed that they worry a lawyer will try and force them to put something in writing that is not correct, but will not bring this concern up with the lawyer. The lawyer likely doesn’t even know this concern is lingering in the expert’s head throughout the working relationship. I try to relieve experts of this misinformed concern at the outset and tell them that I only want the truth and what they feel comfortable stating in their report based upon a reasonable degree of medical certainty. See Your Expert p 46
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