60. How to Be An Expert Witness with Amal Mattu and Rich Orman
Thinking about a career as an expert witness but now quite sure how to get started? Or perhaps you already have a side gig in this line of work but you want to up your game. In this episode we chat with Amal Mattu, MD who is an expert at being an expert witness. He shares pearls of wisdom including what inspires him to do this, how he does it, and why you should remain nice even when it’s getting heated in the courtroom. Our second conversation is with Rich Orman, JD who has years of experience working with expert witnesses as a trial attorney. He gives his perspective on the mistakes expert physicians make and teaches us that preparation is the key to success.
Amal Mattu, MD is a professor of emergency medicine at the University of Maryland. He's known worldwide for his expertise in educating on emergency cardiology issues as well as his medical legal expertise and experience.
Rich Orman, JD spent nearly three decades as a trial lawyer, working across the spectrum of practice types - public defender, private practice, and most recently as Senior Chief Deputy District Attorney in Colorado's 18th judicial district.
What inspires Amal to be an expert witness and why he usually works for the defense [1:59];
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.
How to review a chart [6:20];
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.
Reimbursement strategies and keeping track of hours [08:37];
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.
How being involved in court cases influences what you say in a podcast or teach publicly [10:00];
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”.
The fact that medicine is not as clear cut as attorneys make it out to be [10:00];
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.”
Why you should be even-keeled and nice when you’re on the stand and things get heated [13:55];
If you’re honest, plainspoken, and speak the truth, people will be much more sympathetic and want to listen to you.
The steps to getting started with med-mal work [18:30];
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.
The importance of knowing clinical policies and guidelines for your specialty (because they’ll be brought up in court) [20:30];
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.”
An attorney’s perspective on the mistakes expert physicians make [29:50];
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.”
Alleviating the fear of physicians who are terrified of being on the witness stand [34:15];
The key is providing the exact questions ahead of time and practicing. If an attorney doesn’t offer the questions, ask for them.
Advice Rich would give to an expert physician witness who is being cross-examined in an antagonistic way and is clearly unsettled [37:35];
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.”
Rich’s advice for responding to ‘yes/no’ questions when there isn’t a ‘yes/no’ answer [41:55];
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”.
What do the best expert witnesses do that the worst ones never do: prepare [43:15];
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.”
The difference between direct testimony and cross-examination [50:15];
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.
Shownotes by Melissa Orman, MD
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