BEST PRACTICES FOR LOCATING EXPERT WITNESSES
Networking and Communication – Ten Keys to Finding and Working
with Experts
by Rose Clifford, RN, CLNC
Finding Good Expert Witnesses — Start with Who You Know
Word-of-Mouth Referral
In my opinion, word-of-mouth referrals are the ideal way to locate an expert. As a liaison, you can ask other attorneys if they know of a particular expert. You do not have to tell them why or for whom you are asking. Asking local, state, plaintiff or defense bar associations may also turn up an excellent expert.
An area most attorneys do not have access to is the health care profession. Attorneys don't know all the doctors and nurses you know who might be potential experts or know one. When choosing a health care expert, always consider those in your own network who have excellent clinical practices, good patient relationships and clear communication skills. When in doubt, you can ask other legal nurse consultants for their recommendations.
Literature Search on the Medical and Nursing Issue
Journal articles, textbooks and conference proceedings are another ideal place to begin looking for an expert. Preferably, look for someone who has written on the issue in question and speaks to your attorney's theory of the case.
If you have the opportunity to see the potential expert make a presentation, this is a fairly good indicator of how she will perform under the pressure of deposition and trial. Notice how the audience responds to her – this may indicate how much jury appeal she will have.
Your Prior Experience with the Expert
If you have personal experience with an expert from one of your previous cases, this will carry much more weight with your attorney-client and be your best practice for locating experts. Building your own network of experts you've actually used takes time and patience, but it's a worthwhile investment that will benefit your LNC practice immensely.
Your Personal or Clinical Experience with the Expert
Knowing the expert personally or working with her in the clinical setting is another way to determine whether she would make a good expert, either behind the scenes or as a testifying expert. For example, you may be able to recommend your personal physician or an emergency department physician you have seen in actual practice. We have found some of our best experts in this manner. You would be surprised who has an interest and who is willing to help you.
Referral from a University Teaching Facility
Calling a university teaching facility or small teaching institution is another great way to locate experts. Faculty members will be knowledgeable in their specialty area. They are credentialed and have years of experience teaching groups who are new to the specialty. In essence, they are used to teaching people who do not know and they usually have a way of building confidence in the learner and easily explaining complicated matters. This skill translates well into the ability to teach an attorney and ultimately a lay jury.
Working with Attorney and Expert — Keep the Communication Flowing
Keep the Attorney and the Potential Experts in the Loop
Personal contact with all involved in the search process is very important. The attorney, the expert and their contact personnel are all essential to the success and speed of the search.
First and foremost, keep your attorney-client in the loop. By placing importance and value on his immediate need, you make him feel as if he is your most important client. When you stay in touch with your attorney every step of the way, you are available to receive his guidance and preferences on the specific needs of the case. You are also developing and deepening your relationship with your client.
Second, keep the potential experts informed during the selection process. As with your attorney-client, respecting the expert's time and practices shows her that you value your new relationship with her and allows her to begin trusting you as a professional. Then, if the attorney decides not to utilize any of your potential experts, they will still be open to future contact from you for other cases. Keeping your experts informed is, in essence, building your network.
Finally, contact personnel for both the attorney and the potential expert are just as important as the players themselves. The attorney's secretary, the expert's secretary, nurse or assistant are your gatekeepers. Without them you simply do not have access. By including them in the process, you are acknowledging their importance. A simple word of sincere praise or politeness will foster a good relationship and make the process of finding the right expert go more smoothly.
Serve as the Attorney's Initial Contact
Making the first call to the expert for the attorney is another important part of our practice in serving as a liaison between the attorney and the expert. Busy schedules often make it difficult to get the two together. By being available to contact the expert initially and throughout the case, you help the attorney use his time more efficiently. Depending on your attorney-client, your initial contact with the expert may involve determining whether the practitioner has expertise in the medical or nursing issue, whether she is interested in the case and whether she is available. We may also meet with the expert to bring the medical records and x-ray films.
Meet with the Expert
Occasionally, we meet with a potential expert with or without the attorney present, but always with the attorney's permission and knowledge. The purpose of this meeting is:
To assess the expert's presentation To evaluate the expert's surroundings, and To expedite the process of reviewing the case.
We then follow up with a conference to discuss the expert's findings, again with the attorney's prior knowledge and approval. We report the expert's findings to the attorney and arrange a time for them to confer, either in person or on the telephone.
Accompany the Attorney to Meetings with the Experts
Accompanying the attorney to meetings with his experts is a comfortable role for the legal nurse consultant. It is the equivalent of going on medical rounds in the clinical setting, and your role is similar – you should have the medical records thoroughly organized and know their contents. In addition, you should know the medical issues of the case. With this information mastered, you can help the attorney grasp what the expert is trying to convey. You may be able to rephrase the information so the attorney understands or, at the very least, can ask clarifying questions. When I'm present in these meetings, I've found that medical experts tend to relax into the nurse-doctor relationship and be more open with my attorney-clients.
Help the Expert Feel Comfortable
Help the expert feel comfortable throughout the litigation process by explaining each step. For example, we initially explain the attorney's knowledge and experience with the kind of case we're working on. This builds the attorney's credibility, giving the expert confidence that she is working with a reputable and knowledgeable attorney. Depending on the expert's experience, we may explain the basics of the discovery phase and what happens at deposition and at trial. At the end of the case, we call the expert back to let her know the outcome of her testimony. This brings closure to the case for the expert.
For 14 years Rose Clifford, RN, CLNC has been an expert independent LNC specializing in investigating Medicare billing fraud and PIP auto fraud. She owns Medical Analysis Resources, Inc. in Kentucky.
Expert Procurement Sheet Makes Searches More Efficient
by Gloria Blackmon, RNC, BSN, LNHA
Although not one of my routine services, locating an expert witness is an assignment I find challenging. I enjoy hunting for just the right person who meets the attorney-client's criteria.
As with any business activity, you must develop tools or systems to help you become efficient and effective. Even after I had successfully located experts for several clients, I found myself calling a client's office three times to get more details on the expert he needed. While this did not hurt my
relationship with this client, I didn't like feeling so inept. My solution was to develop the Expert Procurement Sheet shown below.
The Client's Criteria Come First
Over time, we all build "start here" lists to make any complex project easier. I start my search according to the criteria set by my attorney-client. If I am looking for a local expert, I check my own files first to see if anyone meets the criteria. I may also tap into a small strategic alliance of other LNCs to check their databases.
If the attorney wants a physician who is university affiliated, I start in that direction. I have access to a network of practicing and teaching professionals from a variety of clinical settings. If they do not meet the selection criteria or are not interested, they generally can lead me to other individuals who may be interested.
Screen Your Experts Carefully
I obtain the expert's current CV and fee schedule, along with any articles if they are directly related to the case or if the attorney asks for them. I also find out if the expert is listed in any expert databases, as some attorneys are adamant about not using experts who advertise.
I always screen for any conflicts before divulging information to the potential expert. Although I am not always asked to read or screen the case first, I can still screen for conflicts to the best of my ability, given the information provided by the attorney.
Timing Is Everything
Sometimes I find the perfect expert in one or two phone calls, and sometimes it takes weeks of persistence. For this reason, it is imperative to know your client's time frame. If you can tell you aren't going to meet his deadline, notify him ASAP. This does not always mean he'll want you to abandon the search, but he may want to alter the criteria or involve someone else to help with the search.
When I contact a potential expert, I give her as much information as possible. Even if she has experience testifying or giving depositions, I ask how she really feels about it. Never sugarcoat a case. Be very clear about what the attorney expects from the expert so you don't do either party a disservice.
Once I turn over the experts to the attorney, I have no further contact with them regarding case specifics. I will follow-up later with both attorney and expert regarding their satisfaction with the procurement process.
Gloria Blackmon, RNC, BSN, LNHA is the owner of Blackmon & Associates Medical-Legal Consulting.
To assess the expert's presentation
