60. How to Be A Medical Expert Witness with Amal Mattu, MD and Rich Orman, JD

• A big part of the motivation is that it’s educational and improves his patient care. Also, he can take the lessons he’s learned to teach residents.
• He believes everyone should be required to do cases as part of their board certification. “If we flooded the market with honest, straightforward people, the system would be a lot better.”
• Amal is a witness for the defendant 85% of the time. He takes plaintiff cases when they’re straightforward.
• The vast majority of the cases he reviews are settled or are dropped.

• Most of the time he’s given the complaint that’s been filed or a summary of the issues so he understands what the contentions are. After this initial review, he has a discussion with the attorney to decide whether to go forward with the case.
• He now limits the cases he’ll review to those with only 1-2 ED visits — he finds he learns more from these than those with extensive inpatient records.

• Your hourly rate will come up at some point in the trial. By choosing to charge less than most of his peers (some charge $1000-$2000 per hour), Amal is asked during deposition and almost never in front of the jury.

• Anything you say that is recorded can be used in a trial. You have to be careful never to refer to something as the standard of care or to say it should “always be done”.

• Lawyers will ask questions trying to force a ‘yes’ or ‘no’ answer. Feel free to say, “I can’t answer ‘yes’ or ‘no’. There’s more to it than that. It’s not as clear cut as you’re trying to make it seem.”

• If you’re honest, plainspoken, and speak the truth, people will be much more sympathetic and want to listen to you.

• While some people advertise, Amal doesn’t. He worries that it might make you look bad.
• If you know people who do this work, ask if they might refer a case to you. Over time, if you’re trustworthy, reliable, and self-confident in your answers, then you’ll gradually get more work.

• If you deviate from a guideline, you’ll be expected to explain your reasoning for it.
• Clinical policies are largely protective, providing guidance to do/not do something without necessarily knowing the literature behind it.
• If you’re using a clinical pathway or other decision instrument to make medical decisions, make sure that it has been externally validated.

“People run into problems with guidelines when they take part of the guideline and then they kind of go rogue with it…When people don’t use the policy the way it’s written, that’s when they start running into problems.”

• The biggest mistake experts make is thinking that the jury won’t consider them to be biased. While juries are inclined to believe that the treating physicians are unbiased, a hired expert is always biased. “Even if they think they’re being honest and giving the right opinion, the questions asked of them create a bias in and of itself. And also, there’s going to be an unconscious bias because they’re being paid by this side.”
• Another mistake is to get angry and take things personally when challenged. Physicians are not accustomed to being pushed back on, but in court your opinion is expected to be challenged. The credibility of the expert diminishes when they get angered by challenging questions.
• Showing a bias on social media posts can be very harmful. “In this day and age, everything you say, anywhere you say it can be used against you in a court of law.”

“The expert needs to have a professional demeanor at all times and understand that it ain’t personal, it’s just business.. If they don’t do that, it’s a huge mistake.”

• The key is providing the exact questions ahead of time and practicing. If an attorney doesn’t offer the questions, ask for them.

• Listen very carefully to the question asked and answer it without being argumentative or providing additional information that wasn’t called for. If you don’t actually answer the question or you give much more information, the jury will see that and it will diminish your credibility.
• Remember that the people you’re trying to convince are the judge and/or the jury, not the attorney.

“You are not there to persuade that attorney of anything…You’re only talking to the people making the decision in the case, and you always have to remember that is where your answer goes. Your answer is not going to the attorney.”

• It can be powerful to say, “It depends”. They can’t order you to say ‘yes’ or ‘no’.
• Or if you’re responding to a question beginning with, “Isn’t it true…”, an excellent response in the setting of uncertainty is, “Well, not necessarily”.

• You have to know all the underlying information. If you don’t look prepared, your opinion is going to be less credible.

“The best experts know the material. Fly-off-the-seat-of-your-pants experts will not stand up on cross- examination.”

• Direct testimony (aka. direct examination) is when the expert witness testifies. This is when the attorney that calls you as a witness asks you open-ended questions. Generally, leading questions are not asked during direct testimony.
• Cross examination, if it’s done well, is when the attorney testifies. That’s when they get to ask you ‘yes/no’ and ‘Is it right?’ questions. The attorney is the one giving the information, but you are the vehicle for them to get their information out or to attack your position.