Being an expert witness is an attractive proposition for increasing numbers of independent practitioners and can bring handsome rewards. Some like the kudos, others see it as a natural progression of their career, some do it for the money and a few do it for altruistic reasons.
In this Independent Practitioner Today serialisation of his brilliant new book, Michael R. Young sets out some basics for getting started and gives some useful tips. We are also offering readers a discount to buy the whole book, The Effective and Efficient Clinical Negligence Witness: see bottom of this article
The Oxford English Dictionary defines an expert as ‘a person who has great knowledge or skill in a particular area’.
Of course, any aspiring expert witness must be an expert in his or her chosen clinical specialty, but to be a successful expert witness, you will also need to develop five key skills; namely, the ability to:
Write clear, concise, grammatically correct and accurately spelt prose;
Read large quantities of text quickly, accurately and critically;
Classify evidence precisely and assess its value and reliability;
Argue logically, consistently and skeptically;
Marshal various sorts of evidence to support a logical argument.
These are not necessarily the skills you were taught at medical or dental school, but they are essential skills for the expert. An expert is, by the very nature of the job, also a professional writer.
There are many definitions of ‘expert witness’, but the key elements are that:
They are believed to have knowledge beyond that of the average person in their profession;
Others, either officially or legally, rely upon their specialist opinion;
They testify on matters that they have not seen or heard at first hand.
A layperson can only give evidence based on fact, whereas expert evidence is opinion based.
The medical or dental expert working in clinical negligence will be expected to carry out the following tasks:
- Examine patients (the claimant);
- Provide lawyers with written reports;
- Answer questions put to him or her in writing by lawyers;
- Answer verbal questions put to him or her by lawyers;
- Attend case conferences and meetings;
- Attend at court for trials.
There are no defined qualifications for being an expert witness, but people should not seriously consider putting themselves forward for the role unless they have a relevant postgraduate clinical qualification.
Conversely, having a string of letters after your name won’t necessarily make you an excellent expert.
Technical expertise does not automatically qualify someone to be an expert witness: very different skills and competencies are also required. As well as possessing the necessary clinical qualifications, you will also need years of clinical experience under your belt.
By the time I was seriously involved in expert witness work, I had between ten and 12 years’ clinical experience behind me. I had at different times been a clinical teacher of restorative dentistry and of children’s dentistry, and I had a postgraduate dental degree. This combination of experience and qualifications gave me the self-belief to become an expert.
As an expert, you will be taken out of the relatively cosy clinical environment in which you are master, into a seemingly hostile world in which non-clinicians – solicitors, barristers and judges – put endless questions to you, challenging you to provide them with certainties.
The legal profession is not like medicine or dentistry: lawyers have been trained to extract information from documents, to ask closed questions and, above all, to win their argument no matter which side they are on.
An excellent solicitor or barrister will be able to present a good argument from both sides. Lawyers will question you about the general and the particular, the empirical and the theoretical, the objective and the subjective.
If you are going to survive as an expert you will have to be objective and be prepared to draw out favourable as well as unfavourable aspects of a case.
You must also never venture beyond your own expertise, and you must be honest in your opinions and be prepared to admit when you do not know something.
Your duty is ultimately to help the court, and this duty overrides any obligation to the person from whom you have received instructions or by whom you are paid. An expert witness is not a hired gun.
Once you’ve pinpointed the problem or problems with the care or treatment, the lawyers will want to know why it was wrong, how it went wrong, and could it have been predicted or prevented. In fact, they will want the answer to almost every question you can think of.
I came up with this little rhyme that to me sums up the clinical negligence expert’s relationship with the lawyers: I thought I knew the answers to how and what and when; That was until the lawyers asked me the same again.
If nothing you have read so far has put you off becoming an expert witness, then the next step is to undertake an honest appraisal of your personal qualities.
Expert witness work is no place for the arrogant, opinionated bully. It demands a very clear head, an even temper and the ability to listen to and respect other people’s opinions.
It is a role that is intellectually demanding. If you hated writing essays as an undergraduate or if you are more at home with a scalpel or a drill than piles of papers, then expert work is probably not for you.
Your work as an expert is also too important to be tagged on the end of a busy working day, but when is the best time to work?
I preferred to read case notes in the afternoon, but writing is much more demanding. I’m a morning person, so I like to rise early and get straight on with writing. Once I start making too many typographical errors, I know it is time to call it a day. I never write if I am tired or if I am not in the mood. Discover your best time.
An accident of chance
Becoming an expert witness may be a conscious decision or you might fall into it almost by accident as I did.
One of my patients, a clerk of chambers, asked me one day if I could help out one of his firms of solicitors. The solicitors wanted a report for one of their clients, who was claiming damages for a fall the client had suffered.
I agreed to help. I’d never done anything like this before. I wrote the report. The claim was settled. I was paid, although probably not as much as all my time and effort was worth.
More work started to come my way: insurance claims, and dental negligence cases. This was the start of my role as an expert witness. The insurance claims were relatively easy to advise on, but the negligence cases required a whole new set of skills.
Different people become an expert witness for different reasons. Some like the kudos, others see it as a natural progression of their career, some do it for the money and a few do it for altruistic reasons. What is your motivation?
If you would like to read what a few doctors have to say about their reasons for becoming an expert witness, then I can suggest an article written by Helen Jaques, ‘Being an Expert Witness’, published in BMJ Careers in May 2011.
Whatever the reason, your first steps along your new career path are important and require the same degree of professionalism and dedication that you give to your main career.
You will have to run your clinical career alongside your expert work – expert work is not something you can pick up in retirement. Once you cease work as a clinician, your usefulness as an expert rapidly diminishes.
Before you even begin to look for work or accept your first instructions, determine how and when you are actually going to fit it into what is probably already a very busy working life.
As I have said, your role as an expert is too important and exacting to be relegated to the end of a busy working day.
Each case is different in terms of complexity, and hence the amount of time you are going to have to spend on each one varies enormously.
However, on average, each case is going to take up not less than ten hours of your time. If you are a good expert, word will soon get round and you could suddenly find yourself with several cases on the go at any one time.
You will find it hard to say no to new work. You are under no obligation to accept or complete a set number of cases per year, unless you have become a provisional member of one of the expert witness organisations and are trying to move up to full membership. Be careful you don’t take on too much work.
You will need to set aside time during the day or at weekends when you are guaranteed not to be disturbed. I suggest you start off with at least one half-day a fortnight, which you will need to increase as your caseload increases.
Even if you don’t have sufficient expert work to keep you occupied for this half day, you can always use the time to look for work. From the outset, you will need to adopt the habits of an organisational saint.
Control access to files
Case files must be kept apart from your day-to-day files and records. You must also carefully control who has access to this confidential information. I would definitely keep the case files away from others with whom you work.
I found expert work to be very different from anything I had ever done in dentistry. However, having a BA stood me in good stead.
As a classics and history graduate, and an amateur archaeologist, I was used to ‘interrogating’ documentary evidence, both primary and secondary, all too aware of the limits of oral history, and used to interpreting material remains.
But expert work still presented me with new challenges. I was on a steep learning curve, but once I realised that the law is very different to dentistry and that they are indeed two very different intellectual disciplines, I was OK.
As useful as my training as a historian was, at the back of my mind was something I’d read in Julian Barnes’s novel The Sense of an Ending, that ‘history is that certainty produced at the point where the imperfections of memory meet the inadequacies of documentation’. I leave you to draw your own conclusion.