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Know Your Judge

General Principles

1.1­ In cases involving personal injuries and where a patient suffers from a condition which is the subject of a legal dispute, a treating physician has a duty to provide medical information pertinent to the patient's claim in reports, depositions, conferences and trial testimony. In other cases, experts may have a duty to provide information that experts have obtained in the course of their normal duties, such as an accountant auditing books of a business.

It is recognized that the primary duty of a physician is to treat a patient's illness or injuries. However, an additional responsibility of a treating physician is to provide necessary medical information and opinions by virtue of his or her acceptance of that patient for treatment. Like any other citizen, a physician or other expert can be required to tell what he or she knows if such information will aid the judicial process.

The transmittal of this medical or other information may include a written report which either sets forth the diagnosis, treatment and prognosis, or which responds to specific questions posed by an attorney concerning important issues in the case. Later, the expert's deposition may be taken to "discover" further information. Incidental to these contacts, one or more conferences between the expert and the attorney endorsing or retaining the expert may be requested. Finally, if the case does not settle, the expert may be called as a witness to testify in court.

The expert and attorney should cooperate in this information-gathering process to facilitate settlement, promote the administration of justice, and control the costs of litigation.

1.2 ­Experts and attorneys should openly communicate with one another and, wherever possible, agree in advance concerning the terms of their relationship so as to avoid conflict and disputes between the professions.

Open communication is the touchstone of dispute avoidance and dispute resolution. While experts' services are essential to the administration of justice, the expert and attorney should seek out and discuss ways of minimizing the burden of services on physicians and other experts as well as minimizing the cost to clients. Unless an attorney and expert have a history of prior business dealings, it is desirable to agree in advance concerning the nature, scope, and cost of the expert's services. (These subjects are discussed in greater detail in other sections of this Code.) The expert may already have set policies, or an agreement may be worked out at the time of the initial contact. Preferably this agreement should be reduced to writing.

If an agreement cannot be reached, the matter should be discussed immediately. At all times, the client's best interests should be the overriding concern. The professionals should agree on as much as possible and submit any residual dispute to the court or an interprofessional dispute resolution committee.

Toward this end, direct communication between the expert and attorney is preferable to communication between secretaries, receptionists, or clerical staff.

1.3­ The role of the expert is not that of an advocate or trier of fact and, at all times, the expert's opinions should remain fair, unbiased, and objective.

The role of the expert in a lawsuit is that of a witness only. The expert should never become an advocate or a trier of fact. The expert should not seek to openly support or oppose the position of either party. No matter how much he or she inwardly favors or opposes the cause of one party to a lawsuit, it is the expert's clear duty to present information in a fair, unbiased, and objective fashion. When called to testify, the expert's duty is to answer the questions truthfully and to the best of his or her knowledge. Under no circumstances is an expert justified in suppressing evidence. The expert should never be influenced by extraneous matters such as the source of his or her compensation, friendships, personalities, or inappropriate pressures from patients, clients, attorneys, insurers, or professional organizations.

1.4­ Although an attorney is an advocate, an attorney is never justified in abusing or intimidating an expert witness in any manner, in an attempt to discourage the expert's further involvement in the litigation or to alter or suppress the expert's testimony.

An attorney is an advocate and has a duty to zealously represent his client's best interests in litigation. However, that duty as advocate never justifies abuse, intimidation, badgering, or personal attacks on a witness. Improper attempts to discourage the expert's further involvement in the litigation or to alter or suppress the expert's testimony should be strongly denounced. Such attempts are never justified or necessary. Adequate means are available to test credibility by cross-examination, impeachment, and rebuttal. An expert need not tolerate abusive or improper conduct and should promptly bring it to the attention of the opposing counsel, the court or tribunal in which the action is pending, or an appropriate grievance committee.

1.5­ Attorneys should refrain from giving advice on medical management or interfering in the physician-patient relationship. Similarly, physicians should refrain from giving advice on legal matters or interfering in the attorney-client relationship. In other cases, non-physician experts and attorneys should refrain from interfering in the relationship between the expert, his or her client, and the attorney and client.

Physicians, other experts, and attorneys must recognize that they hold a position of trust and confidence with their patient-client. Each professional must recognize the limitations of his or her role and expertise and defer to the other professional in matters uniquely within that individual's expertise.

Hence, a lawyer should not encourage "physician shopping" or "expert shopping," should not counsel a client concerning treatment options, and should not otherwise improperly influence the client in an attempt to accentuate damages.

At the same time, the expert should refrain from counseling the client concerning such legal matters as the value of the client's claim, the nature or terms of the fee agreement with the attorney, or trial techniques and strategy decisions. These are exclusively the province of the lawyer.