by Kathy Fortune M.D.

Created on: November 01, 2009   Last Updated: November 06, 2009

Physicians, like other expert witnesses, testify in court about their opinions only.

In order to prepare for court, the doctor must have expertise in the area of concern to the case. Prior to appearing in court, the physician examines or interviews the patient, reviews all of the relevant documents in the case and prepares a written report about the findings.

The physician must be prepared to defend their opinion and the opinion should be supported by well known knowledge in a particular field and from the relevant literature.

While there are physician experts who are willing to appear in court and attempt to support the opinion of the hiring attorney, the numbers are very small. Further, persons who engage in this activity become well known and therefore are not typically successful in court. Unfortunately, physicians are not disciplined because of an opinion.

The opposite side is also entitled to an expert and if there is an unreasonable doctor on the stand, the opposing expert can identify the holes in the testimony and explain why the testimony is unreliable. No one should attempt to appear in court without the benefit of an expert, especially if it is believed that the opposing expert is unethical.

In the courtroom, the hire-to-testify witness must answer several important questions on cross examination before providing information. They will be asked if they typically testify for a particular side; how often they testify for that side; and the amount paid for the testimony. Further, they must provide collaborative information to support their opinion and if this opinion is out of sync with the literature and the professional community, the opposing attorney will make this clear to the jury.

The good news is that such witnesses rarely accomplish the positive goal of persuading jurors. They are hired as a last resort and in a desperate attempt for an attorney to appear to be doing all that they can do for a client. The expert rarely holds up under precise cross examination from a competent attorney. When an expert is rigid and unwilling to acknowledge a reasonable fact, jurors and others in the courtroom understand what is going on and reject the testimony.

Doctors performing independent medical examinations, for social security for example, do raise questions about the usefulness of their opinions. Often, these doctors are more motivated by fear than fairness. They fear the loss of their positions if they are supportive of a claimant or plaintiff. They should always be challenged and hopefully, they will eventually be excluded from the courtrooms completely.

Unfortunately, it remains difficult to dispute opinions, therefore, attorneys coping with such doctors must anticipate their testimony and be prepared to dispute it immediately. Anticipation of deviant testimony has its advantages as the attorney must engage in greater preparation. It is difficult for any witness in court to overcome great preparation and a through knowledge of the area at issue in a case.

Great preparation and anticipation of unreliable testimony can result in a win for the client.

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