In modern litigation, though trials are few and far between, the prospect of eventual trial continues to be the infrastructure around which cases are built. The steps in preparing an expert for trial ensure parties identify the issues in dispute and distill complex matters to the essence. While the specific nature of allowable communication between counsel and experts may differ by jurisdiction, universally the courts will be looking to the expert to be an impartial advisor. The expert’s evidence will assist the court in understanding complex technical matters in the decision making process.
The role of the expert is to inform, not to overtake, the role of the fact finder. The expert is held to a high standard and is expected to be impartial and scrupulously honest. The expert must avoid the role of advocate and must demonstrate detachment and objectivity.
Cross-examination is an essential part of the trial process. The evidence will be tested, reliability and partialness assessed. The outcome of the cross-examination will factor into the court’s assessment of weight to be placed on the evidence.
For instructing counsel, preparation is the key. The lawyer’s goal is to assist the expert to be direct, concise, and clear. The expert strives to give evidence in a way that effectively educates the court in a reliable and credible way. Preparation ahead of time including review of reports, literature, and qualifications, as well as practical court room tips, will help the expert feel at ease as much as possible and ready to present, and defend, her or his evidence.
The expert will benefit from knowing that during cross-examination the judge will be watching for indications of advocacy, partiality, flawed reasoning, and inadequate underpinning of the opinion. It will be helpful for the witness to understand the process the judge goes through in weighing the evidence and deciding which evidence will be preferred.
The lawyer should also consider the perspective of the expert. A large group of doctors and nurses who have acted as expert witnesses were polled. The idea was to gain the experts’ perspective regarding their past experiences with the legal instruction they had received on advocacy, trial, and cross examination. Their responses revealed an unexpected disconnect between what lawyers want them to know and what they actually know.
Instructions currently provided on the issue of advocacy were reported as less than helpful and sometimes contradictory. A Neurologist from Toronto said;
“The gap between the information that was received and the practices that are observed was inordinately deficient and compounded by information that I was supposed to be both unbiased, yet supportive of the lawyers’ position.” Although clearer instruction on this topic may have been included in letters of engagement, the letters were not always read. Some experts reported that their unbiased opinions, when presented to the lawyer, were met with criticism.
On the topics of trial and cross examination, several experts indicated fear of the process and varying degrees of instruction by the lawyer. An Obstetrical nurse said of her first experience in the courtroom: “It was like playing in someone else’s sandbox without any of your friends and none of your own toys. I was scared to death.” A Vascular Surgeon from Toronto stated: “Dealing with physicians is problematic at the best of times since most of us are megalomaniacal prima donnas who love to have our egos stroked. That said, most of us live in morbid fear of being sued, a real but very misunderstood risk. Those of us who have done some medical-legal work might have a bit less fear of the judicial system.”
In spite of the somewhat negative feedback received in this survey, many of the respondents indicated willingness for an increased sharing of knowledge, to both learn more and teach more. While the personality traits and skill sets of lawyers and health care professionals differ, the desire for professional preparedness is mutual.
It may be helpful for lawyers to understand that the need to be of service is part of what makes nurses’ and doctors’ ‘tick’ and that the concepts of impartiality and advocacy are separate but intertwined in healthcare. Learning to avoid advocacy may require time, experience and repeated instruction. The adversarial elements of trial and cross examination are foreign and frightening to many healthcare professionals, enough so that some shy away from the role of expert witness purely to avoid the courtroom experience. There is opportunity for counsel to provide further instruction to healthcare experts, while respecting the legal and moral boundaries of both professions.
This article is a summary of a paper written for the Alberta Civil Trial Lawyers Association seminar, Liability!, March 10 and March 12, 2014. Chris Rokosh RN, PNC(C), Legal Nurse Consultant is president and CEO of CanLNC Incorporated, a national company that provides medical/legal education to healthcare and expert witnesses to lawyers involved in personal injury, medical malpractice and class action litigation. Paulette DeKelver is a partner with Weir Bowen LLP, a mid-size firm specializing in civil litigation. Since joining Weir Bowen LLP in 2005, her practice focus has been advising and representing plaintiffs in medical malpractice actions.