46 Trial Lawyer • Fall 2023 Hire your expert early Having an expert hired at the outset can add value to your case. They can assist you in language to use in your complaint to help avoid a Rule 21 Motion and assist you in narrowly tailoring your discovery to get what should be there. Consider trading-up The more you become involved in your case, the more medical literature and information you will be exposed to. Often times, you will likely see posts on the OTLA or AAJ listservs dealing with your unique medical issue and realize there are other experts out there handling a nearly similar case. If you see an AAJ listserv extolling the virtues of their expert, and that case has the same medical issue as yours, be willing and open to meet the new expert. Just because you have sunk time and money into your first expert does not mean you should foreclose the opportunity to retain another one. Perhaps the new expert is a better educator or patient advocate than the first one you hired. If the new expert brings better tangibles to your case than your previous one, feel free to switch – particularly in Oregon where there are no expert disclosure deadlines. Out of the box We all are aware of the short attention span and retention abilities of jurors and others when listening to and processing oral information. If studies are to be believed, most folks retain 10 % of what is spoken to them and you will have about 20 minutes of their time before their attention span and retention rate begin to decline sharply. Unless your expert wrote the only book on the subject, get to your expert’s opinion and reasons for it right away. It’s great if your doctor is Harvard-educated, has published extensively and does work for Doctors Without Borders, but you Your Expert Continued from p 45 can elicit this testimony at the end of your direct rather than the beginning. If my expert is going to be on the stand for an hour of direct exam and the jurors’ attention and retention grasp will begin to decline at 20 minutes, I want to spend that first 20 minutes discussing the standard of care and how the defendant doctor completely disregarded it. Your expert’s board certifications, fellowships, publications and work at the Rotary club are important, but can wait until the end. That way, if several of your jurors have already checked out early, they nonetheless heard the important part. For the few jurors’ attentions who your expert still has, the impressive credentials and publications will serve as an exclamation point to the testimony and give those jurors ammunition to argue with the other jurors in the deliberation room. Additionally, a lot of experts have a solid teaching/presentation background. They are likely comfortable getting out of the witness box to use a whiteboard or demonstrative exhibit to help explain a difficult medical concept to the jury. Find out what your doctor’s experience and comfort level with public speaking is and strive to have them get out of the box as much as possible when explaining topics to the jury. This will keep things interesting and the jury more engaged. Conclusion While there is no magic bullet for finding the perfect expert, I believe that an open mindset and following some of these guidelines will work wonders on tightening up your case during discovery and at trial. Chris Kuhlman focuses his work on medical malpractice, nursing home abuse, and catastrophic injuries. Kuhlman contributes to OTLA Guardians and the Guardians Club level. He operates Kuhlman Law, LLC, 160 NW Irving Ave., Ste. 203, Bend, OR 97703. You can reach him at 541385-1999 or ckuhlman@cklegal.com.
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