Lawyer Monthly - January 2022 Edition

“missed” findings be conducted in a blinded manner to minimize bias. Hindsight bias refers to the tendency to overestimate the predictability of an event after the outcome of the event is known. In other words, if a radiology expert witness reviewing a head CT for findings of stroke knows that the patient suffered a poor outcome related to a missed stroke, he or she will certainly make the relevant findings and subsequently overestimate the likelihood of the average radiologist making the same finding in the same situation. The opinions of an expert witness who does not review the case blindly with the same information that the original radiologist had at the time of interpretation are weakened by this oversight. Another suggestion would be to develop a peer review process and system to ensure that expert witnesses meet a high standard for accuracy of opinions. As it stands, virtually any radiologist can serve as an expert witness and can provide testimony that cannot be scrutinised by peers. Given the potential for expert witnesses to be influenced by the lucrative aspect of serving in this role, expert witnesses should be held accountable for their opinions by the medical community. All physicians are required to undergo regular ongoing professional practice evaluation to ensure clinical competency, I believe a similar process should be in place specific to medical experts and their opinions. What qualities would you say make for a good expert witness? Honesty and credibility are the most important qualities for a good expert witness. Experts should also be detail-oriented and extremely thorough in their review of the material. Mistakes happen and should be acknowledged by the expert (my memory is not what it used to be), but too many mistakes looks as if the expert is not respecting their role in the process. Experience in the area central to the malpractice case is essential because of the expert’s role as a subject matter expert. Lawyers are very smart people who are good at asking difficult questions, so experts should be well-prepared and calm under pressure. They should not get ruffled by aggressive questioning but rather understand that the opposing counsel is simply trying to advocate for their client – it is not personal. Familiarity with the tactics used by opposing counsel is always helpful. How can these qualities be trained? There are two characteristics I believe are necessary for 56 WWW.LAWYER-MONTHLY.COM | JAN 2022 EXPERT WITNESS Expert witnesses have a critical role as the bridge between medicine and lay people like attorneys, judge and jury. developing into an effective expert witness; the first is a high level of respect for the role, and the second is being strongly motivated to excel in the role. Apart from these intrinsic factors, every other skill can be learned and honed with education, experience, and practice. There are training workshops available for experts to learn and develop the necessary skills. I pay close attention to other experts during depositions and trial testimony to determine what attributes make them effective or ineffective. I listen to the questions and points provided by counsel on both sides and think about how I would answer. I review all material in exhaustive detail and have a long list of questions I use for preparation prior to deposition and trial testimony. I also review my testimony afterwards to determine if I could have said something differently or been clearer in making a subtle or important point.