You Say Yes, I Say No

If you ever find yourself in a group of fellow trial attorneys and the conversation starts to “lag,” here are a few questions, along with my suggested answers, that you might want to throw out in order to generate some lively discourse:

1. What is the most important characteristic in a good expert? Suppose the choices are (a) outstanding qualifications, (b) being well prepared, (c) ability to communicate. Not many lawyers would choose (a). Qualifications may influence the initial selection of an expert, and they look good on paper, but at the end of the day they probably do not mean a whole lot to the jury if your expert has other attributes. Chief among them, in my view, is the ability to communicate. While preparation is extremely important — in fact, a credible argument can be made that there is nothing more important than an expert who knows all the nuances in the file and can handle every line of anticipated cross-examination — there is no substitute for an expert who can “talk” to the jury and make them feel comfortable about him and what he is saying. Someone who can teach the jury what they need to know and do so in a lively and interesting way is invaluable.

2. Would you rather have a strong case on negligence or causation? That’s a tough one. In the delayed diagnosis cases, particularly cancer cases, there often is good negligence but the real battle ground is on causation. Conversely, in the surgical error cases, causation is rarely in doubt, but negligence is hotly contested. Which of those two situations would you prefer to be in?

All things being equal, if my case is going to be “weak” in one area, I would rather it be on causation rather than negligence. My reason for so stating is not based on any sophisticated legal analysis, but rather simple observation of how non-lawyers react to cases. It has always been my experience that lay people, and even potential experts, upon hearing what the doctor did wrong, are quick to declare that the plaintiff “has a really good case.” In doing so, they are offering a visceral reaction to the negligent conduct in the case, and consciously or not, they are not thinking about causation, i.e., whether the outcome in case would have been any different even if the doctor had complied with the standard of care. I find that to be very revealing. It suggests to me that people simply pay more attention to the nature of the doctor’s conduct and are less inclined to analyze its impact. Furthermore, one may suspect that if a jury concludes a doctor acted carelessly, they are more likely to overlook some doubts on causation because they do not want to let the doctor “off the hook” for the treatment they found to be inadequate. After all, there is certain innate sense in jurors to reinforce positive conduct and deter bad behavior.

Thus, while one would like their case to be strong in all areas, given my druthers, I’d rather be strong on negligence and take my chances of causation.

3. Do you prefer having discovery depositions of experts? Absent unusual circumstances, the general rule in Pennsylvania is that the litigants are not permitted to take a discovery deposition of the opposing expert(s). Suppose the judge in a given case said that he would leave it to the parties to determine whether such discovery would be permitted? Would you as the plaintiff’s counsel be in favor of each side deposing the other’s expert? Unlike some of the other questions posed above, this is an easy one for me. My answer would be an emphatic “No” because permitting discovery depositions of experts is far more advantageous to the defendant than the plaintiff. Here’s why:

• Discovery depositions increase the cost of litigation and, in most instances, the defendant can out spend the plaintiff.
• They make it more difficult to attract experts. One of the beauties of Pennsylvania work is that we can tell a potential expert that he/she will only have to testify if the case goes to trial. Otherwise, a written report will serve as a substitute for a separate discovery deposition. My experience is that many experts find that very appealing because it reduces their commitment of time on the case. Also, if they are deposed for six hours in discovery, they may feel it is a real imposition to ask them to show up for trial. “Can’t you just use my deposition testimony?” they may ask.
• It educates the defendant more than the plaintiff. Because we as plaintiffs have the medical records long before a lawsuit is even filed, most defendants are behind on the learning curve throughout much of discovery. If you give them the opportunity to prepare for, and take, a deposition of your expert, the defense counsel will learn more about the case than you will from deposing his expert.

Those are my thoughts. Yours may be different. Either way, these sorts of questions can make for lively conversation the next time you have to “talk shop” with a bunch of trial lawyers.