Conferences and Consultations Between the Expert and Attorney
Communication with the expert is all-important to assure that necessary, competent and persuasive expert opinions are developed. This in turn facilitates settlement and the orderly presentation of evidence at trial. Therefore, conferences and open communication between the attorney and expert are encouraged so as to minimize misunderstandings over scheduling and fees, diminish the frequency and impact of surprises to both expert and lawyer, and overcome the often-present divisiveness between the professions. (See §1.2.)
6.1 It is often advisable to meet with a potential expert at the outset before the expert has reviewed the issues or rendered a report.
An attorney and expert should often confer at the very outset before opinions are formally rendered. The attorney should explore the expert's background, training, and experience to determine that expert's competence to render opinions on the issues involved. The background facts and disputed issues should be explored. The nature, scope, and availability of records and other documentation on which the expert opinion will be based should be discussed. Any special legal concepts or language needs which should be included in a report should be addressed. The attorney and expert should discuss the issues to be addressed by the expert. The information about the expert that must be disclosed because of court rules should be discussed. See § 4.9. Finally, financial arrangements, deadlines, scheduling, and availability should be fully reviewed at the initial consultation. Such conferences can often be held over the telephone, which saves the time, expense, and inconvenience of a more formal office consultation. Reasonable fees may be charged for such telephone conferences.
6.2 An attorney who expects to call an expert who has treated or who has been retained or specifically employed on behalf of the client to testify in a deposition or at trial should confer in advance with that expert.
An attorney should always meet with an expert before a trial, hearing, or deposition to place the expert at ease. Most experts have a fear of looking "foolish" in a testimonial setting and, by proper preparation of the expert, any such fears should be alleviated while, at the same time, a more effective presentation of evidence should be fostered. It is the responsibility of the attorney to schedule that conference at a mutually convenient time sufficiently in advance of the time for testimony.
Some or all of the following topics should be discussed at a pre-deposition or pre-trial consultation:
(a) The purpose for which that expert is being called as a witness, if that purpose has not previously been disclosed;
(b) The significant issues which may arise during testimony;
(c) Any potentially problematic evidentiary rules or issues;
(d) The strengths and weaknesses of the evidence concerning these issues;
(e) The theories and evidence which will probably be advanced by the opposing side and its experts;
(f) Important legal terminology as it relates to the issues;
(g) Supporting and contrary literature;
(h) Any reports, records, or literature generated by the expert or others which should be studied to prepare for testimony;
(i) Updating and reviewing the expert's qualifications and curriculum vitae and assuring his or her competency to address certain issues;
(j) The substance of the questions the attorney will probably ask of the expert, including key specific questions and hypotheticals;
(k) The scope and content of the anticipated cross-examination by the opposing side, including prior depositions, publications, reports, conflicting medical histories, fee arrangements, etc.;
(l) Scheduling and trial or deposition procedures; and
(m) Financial arrangements.
6.3 A treating physician or nurse has a duty of confidentiality concerning a patient's medical information.
A treating physician or nurse cannot meet to discuss medical information privately with a patient's adversaries without the patient's attorney's prior knowledge of the time and place of the meeting, affording the patient's attorney the opportunity to object and be present at that meeting. This assures that the physician-patient relationship of trust and confidence is not undermined and assures the propriety of any disclosure made. A physician or nurse may refuse requests from the patient's adversaries for informal interviews altogether. However, a patient or patient's attorney may not instruct a treating physician or nurse not to participate solely for the purpose of preventing the disclosure of non-privileged information.
During such informal interviews, if granted, it is improper to disclose information not relevant to the same physical or mental condition at issue in the litigation. If there is any question or dispute as to whether information remains privileged, the information should not be disclosed until the dispute is resolved by the parties or the court.
An exception may exist to the duty of confidentiality when a physician or nurse is sued by the patient as to the condition and treatment at issue in the suit.
A non-treating expert witness should not engage in private consultations with a representative of the opposing party without the knowledge of the party who retained him or her.