• Discuss “possible versus probable” standards of proof beforehand. Doctors like to be 95% certain. Lawyers need to educate the witness that a court requires only 51% probability. • Inform the doctor about the defense theory of the case. Get the defense IME report to your doctor. • Ask the doctor “what, where and why” questions like what is the injury, which actual structure causes pain and what caused it? • Figure out whether you are dealing with a microscopic or macro issue, meaning an injury you can see or not see, such as an arm fracture versus a brain injury. Be sure the doctor doesn’t go beyond the scope of their expertise. • In cross-examining the IME witness, ask whether the plaintiff is malingering or faking and, if not, which structure the plaintiff’s pain is coming from and why. • Make your doctor aware of prior injury records. • Don’t create an asymmetric battle by depriving your doctor of records the defense doctor will have. The Emergency Room Physician • A good expert wants to tell the jury a story, therefore, the expert should give the lawyer an outline of questions that need to be asked in a certain order, so they know what’s coming. • Often, I make out the questions to be asked. • Have the expert explain medical terminology and explain why they are important. The Orthopedist • Let the expert help in organizing the presentation questions. • Have a reasonably good understanding of the expert’s testimony. • If possible, have the expert get down from the witness stand and speak directly to the jury, for example, when showing PowerPoint slides. • I personally like the white board type presentation. Drawing and explaining directly in front of the jury helps with communication and keeps them alert. • Help the expert bring out the reasoning behind their opinions in a commonsense way instead of trying to impress the jury with their qualifications. • Get to the point while the jury is paying attention, which is early in their testimony. Tips from Four Doctors continued from p. 25 26 Trial Lawyer | Winter 2025
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