Interview with Dr. Joe McMenamin – 347
In today's episode, Dr. Joe McMenamin provides priceless advice for the new expert witness.
Dr. McMenamin, an attorney with an extraordinary blend of medical and legal expertise, shares his compelling journey from medical school to the courtroom. He describes the convergence of these two disciplines, offering insights into the integration of medical and legal expertise.
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Exploring Expert Witness Work: A Physician's Perspective
Joe delves into the need for expert witnesses, emphasizing their role in educating lay jurors on complex matters. He discusses the distinction between fact and expert witnesses. He also outlines the demands on the expert witness, including the need for clarity and credibility in communication.
Considering Expert Witness Work: Opportunities and Considerations
Benefits and Opportunities
John and Joe explore the potential benefits of engaging in expert witness work for physicians. They discuss financial rewards, intellectual challenges, and educational opportunities associated with this role. Joe highlights the satisfaction of contributing to the legal system and assisting jurors in reaching informed decisions.
Challenges and Considerations
Despite its advantages, Joe cautions physicians considering expert witness work about its potential challenges. He discusses the time-consuming nature of reviewing medical records and the necessity of navigating cross-examinations. Joe also addresses the importance of maintaining credibility and the risks associated with advertising one's services as an expert witness.
Exploring the Intersection of Medicine and Law: Career Considerations
Joe shares advice for physicians contemplating a transition to law, addressing common frustrations within the medical field, and the allure of pursuing a legal career. He highlights the significant commitment required to attend law school and cautions against making impulsive decisions driven solely by dissatisfaction with medical practice.
Summary
Joe McMenamin offers valuable insights into legal careers, particularly in expert testimony. He mentions his law firm, Christian and Barton, and encourages interested individuals to contact him for more information. Moreover, he extends an invitation to connect via email for discussions on career transition or legal inquiries.
NOTE: Look below for a transcript of today's episode.
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Links for Today's Episode:
- Christian & Barton Law Firm
- Joe McMenamin's Bio and Email Address at Christian & Barton
- Christian & Barton Phone Number: 804-697-4100
- How to Be the Best Expert Witness Consultant – 262
- Top Reasons to Become an Expert Witness Now – 163
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Priceless Advice for the New Expert Witness
John
I've always been interested in expert witness work as an attractive side gig. You know, it's interesting, it's intellectually stimulating, it pays well. And in fact, I've had a couple of physicians here on the podcast before, but I've never had an attorney who actually engages or hires or whatever you want to call it, expert witnesses for their cases.
So I'm really happy to have today's guest here. Welcome to the podcast, Joe McMenamin. Thank you, John.
I'm happy to be here. I appreciate the opportunity. I have to just say that it's hard for me not to call you Dr. Joe, because as Joe was going to explain, he does have both the MD and the JD, so he's going to get into why and how that happened. But again, his work has been, you know, as the attorney engaging the physicians to help him out on cases. So that's the perspective we really want to get today. So why don't you go ahead and tell us a little bit about your background and education, how you ended up where you are these days.
Joe
Sure, John. Yes, I went to med school. I'm not a young whippersnapper.
I went to med school between 74 and 78 at Penn, and then did internal medicine at Emory from 78 through 81. And towards the end of that residency, I applied to law school. It was a concept that I had been thinking about on and off since boyhood, and never really made up my mind for sure until pretty late in the game.
In fact, I was applying to nephrology fellowships at the same time that I was applying to law school. Decided on the latter and went to Penn once again, finishing in 85. It took me four years because halfway through the first year, I had to take a year off when we discovered we were pregnant and I had to put a few dollars together.
So I was a moonlight ER doc for a while. And then finishing law school in 85, I went to practice at a large international firm, was there for a good many years. And then about 10, well, in 2013, I did solo stint for about a year, which was, sorry, 10 years, which was quite a change.
And now I'm at a firm called Christian & Barton in downtown Richmond. Curiously enough, in the very same building where I began my career, but with a different firm. And health law is the main focus of what I do for what I assume are obvious reasons.
John
Very nice. Yeah, that must've been an interesting few years there. Have to jump back and forth, you know, in your education, work again clinically.
How did that year go?
Joe
Well, actually it was longer than a year. I mean, I began my ER moonlighting career as a resident, as a JAR and an SAR. Kept it up during law school, all the way through law school, which is entirely doable.
Law school's curriculum is a very different animal from medical school. The one year that was full-time was occasioned, as I say, by the impending birth of our firstborn and the need to put a few dollars together.
John
Since that time, when you took that first, I think full-time job as an attorney, you never then went back to clinical work part-time or moonlighting or anything?
Joe
No, no, I haven't touched a patient since, good Lord, 1985. And so as I tell lay people, if your back hurts or something, I am not the guy you want to talk to. I mean, Rusty doesn't even begin to cover me.
On the other hand, everything I do benefits from and utilizes in some fashion and to some degree, my education and training in medicine. And I've been fortunate to be able to develop a legal practice that capitalizes upon that stage in my education. And I'm grateful for it to this day.
Excellent.
John
Well, the first question I have relative to this, the reason you're here today to understand this work as an expert witness is really to get to your side of the story, your take on it as someone who's engaged physician. So why don't, let's see, why don't we just start by saying, telling us about, you know, why is there a need for expert witnesses? Why this should potentially be an interesting thing to do on the side for physicians, most of whom will still be practicing when they do this, although I understand not always.
And just kind of tell us about your perspective on those topics.
Joe
Well, the reason that expert witnesses exist and not just in medicine, but a great many other fields is that in US law, pardon me, which was stolen in large measure from the British, a lot of decisions are made by juries. And, you know, people wax eloquent about the wonders of the jury system. And indeed it does have a lot to recommend it.
But jurors are by definition lay people. They're chosen from the ranks of registered voters or from drivers or what have you. And it's not impossible theoretically that the next jury that comes along might have a Nobel Laureate in physics on it.
But the probability of that is pretty remote. And even if you did, that doesn't mean that this very bright, very capable person knows anything about how to work up an acute abdomen or what have you. So the idea is to bring in people who by virtue of their knowledge, skill, training and experience are able to enlighten the jury about the menace, about what is expected and whether in a given instance, the defendant, the person being sued did or did not comply with what we refer to as the standard of care.
And because we recognize that however intelligent, somebody with no medical training or background is not going to have any knowledge or at least probably has no knowledge or if he does, he has precious little about medical topics, we bring in physicians to serve as experts. Now, if the case involves, let's say toxicology, we might not want a physician, we might want a toxicologist or it involves a totally different field. I mean, there's all sorts of experts in all sorts of fields that limited only by your imagination but an accountant could be an expert witness potential or a geologist could be an expert witness depending upon what the nature of the claim is.
I focus of course, on healthcare matters. So naturally, the vast majority of the doctors, sorry, of the experts I've hired have been physicians.
John
Okay. Now, what is your understanding of why this might be interesting to do for a physician? I'm sure some of the people come in and do it maybe with some misconceptions but why would you think it'd be something that would be of benefit for a physician to pursue?
Joe
Well, I'll start by suggesting that it is not for everybody. You could be the best doctor on planet earth and perhaps not be a very effective witness. Reverse is also true.
You could be an extraordinarily talented witness but not necessarily a great doc. They're entirely different skill sets, at least as I see things. It may be useful to have a little background in evidence law to preface what my remarks on this.
There's a distinction in the law of evidence between fact witnesses and expert witnesses. A fact witness is just that, somebody who, for whatever reason, has knowledge of facts pertinent to the case. So I leave work this afternoon and I happen to see the Chevy hit the Ford in the intersection.
I don't know the driver of either one. I don't know what either one was doing. I frankly don't even want to be involved but I happened to be there at the time.
I saw what I saw. In the event a lawsuit ensues from that situation, then whichever side thinks my testimony would be useful to its version of the case, can require me if necessary, or can certainly ask me, and if need be, back it up by law, and require me to come to court to testify to whatever I saw. And this proponent, the side that has asked me to come, can ask me a series of questions designed to elicit from me whatever knowledge I have of this situation.
After that, the other side, the side representing whoever the defendant is, if I'm on the plaintiff's side of it, will cross-examine me, ask me a series of questions intended to suggest to the jury that maybe I'm not such a reliable witness. Maybe I didn't see things very clearly. Maybe it was a cloudy day and my vision was hazy because, I don't know, I'm not wearing my glasses.
Or maybe I'm not reliable. Or maybe I'm friendly with the driver of the other car. Whatever, all of that is perfectly kosher, perfectly legitimate.
And, you know, if I do well on cross-examination, the side that asked me to appear will be pleased, and if I don't, then the side that did the cross-examination will be pleased. But the point is that all I can testify to is what I saw or heard or what I know. I cannot offer an opinion.
I cannot say, I think the driver of the Chevy was at fault, even if I really do believe that, and even if, in fact, there's good basis to say that that's true. That's an opinion I cannot offer. Moreover, I don't get paid for my time.
It's expected of me as a citizen to show up when I need to and to testify. An expert witness is a different animal. An expert witness, first of all, is a volunteer.
Nobody can force you to be an expert. You have to willingly accept the opportunity if it is given to you. Second, you do get to charge for your time.
The law recognizes that every moment that you spend horsing around with some lawyer some place is a moment that you cannot be seeing patients or whatever it is you normally do, and as a result, you're losing money in this proposition unless you can bill for it, and so you can. And third is, yes, indeed, you can give opinions. That's the whole point, in fact.
The reason that whatever makes you an expert is that you have knowledge that most people don't, and therefore your views on a particular technical or scientific or medical or otherwise complicated subject are intended to be, and we hope are, useful to this jury of laypeople who have no prior exposure to these concepts, have very little understanding of them, and the biggest job that the expert has is to be a teacher, at least as I see things. You're there to teach the jury what the facts are. Now, even that's a bit of an oversimplification because although I think the distinctions I just drew between fact witnesses and expert witnesses are correct, there are also two types of experts.
There are so-called consulting experts, and then there are testifying experts. A consulting expert, as the name suggests, serves as a consultant to a lawyer, or maybe a group of lawyers, and is chosen presumably because of his knowledge, whatever his expertise may be in the judgment of those hiring him, is highly valuable, highly relevant to whatever is at issue. But that person does not appear in court, does not testify, and the side hiring him is under no obligation to identify him to the other side, nor to tell the other side, even that he exists, much less what his credentials are, or what his opinions might be, or what the basis for those opinions might be.
He's purely behind the scenes. The testifying expert, on the other hand, is the one that Hollywood will make a movie about, or at least feature an expert in a movie about a trial. This is the person who, yes, will indeed have educated the lawyer ahead of time, presumably, but will also be there in court, will take an oath to tell the truth, will then testify in response to questions posed to him by the sponsoring lawyer, and will respond in turn to the cross-examination questions offered by the sponsoring lawyer's opponent.
Now, both the plaintiff, that's the person bringing the suit, and the defendant, the person being sued, have the right to call an expert, or sometimes multiple experts, depending upon the nature of the case and its complexity. It's not unusual, for example, to have at least two experts on both sides. Why?
Well, because the malpractice theory proceeds on the basis of ordinary negligence law, which has four components, classically, duty, breach, causation, damages. Nothing novel here. I'd be disappointed in any first-year tort student who couldn't rattle that list off just as well as I can.
Duty. If you're my doctor, I'm your patient, you owe me a duty. It's pretty much that simple.
It's usually straightforward, not so much. If I'm an accident victim on the side of the road, and you are driving past, and you see me there, and you're able to help, and you decide to help, or you decide not to help, that's duty. Generally, that's not contested in these cases.
It's pretty clear that you do or you don't own a duty. Breach is, in contrast, highly contested. That's the heart and soul of the case.
Did you or did you not breach the standard of care at the relevant time caring for this particular patient? The plaintiff's expert's job on standard of care is to say the standard of care requires A, B, and C. Doctor so-and-so, the defendant failed to do, did do A and B, but he didn't do C.
That's a breach of the standard of care. The second expert that that plaintiff may call is a causation expert, because that's the third element of the story. Again, it's duty, breach, causation, damage.
It's causation is the so what question. I don't know. I'm a general internist, and you come into me with a history of a bad cough.
It seems to be getting worse. You're coughing up blood. You've lost a bunch of weight.
You've got some chest pain. Oh, and by the way, you've got a 100-pack year smoking history. And on examination, I discover that you have a hard mass in your left supraclavicular fossa.
And then on X-ray, there's a mass demonstrated in the left upper lobe, but somehow, I don't put two and two together, and I say, well, sorry, you've got the cough, nothing serious. Probably go away in a few weeks. I'll see you again next year for your annual physical.
But after that appointment, you leave my office, you cross the street, and you're run over by a bus, and boom, you're dead right on the spot. Is there a cause of action against me for medical malpractice for failing to diagnose what I hope was a reasonably clear case of lung cancer? The answer is no.
Why? I might have reached a standard of care in not being able to make that diagnosis, but I didn't kill you. My mistake didn't kill you.
The bus killed you. So maybe there's a claim against the bus company or the driver or both. Maybe there's a claim against the city for not putting a stop sign there.
I don't know. Use your imagination. But there's no claim against me as the doc because I had nothing to do with your death.
There are a class of experts who testify to causation, which is, from a medical point of view, often the most complicated and also the most interesting part of a malpractice case. Why did so-and-so develop condition X? Or why did he die at the age of whatever when he should have lived another 10 years or so it could be argued?
Now, one doctor could serve as both the standard of care expert and the causation expert, but it's not unusual to have one of each or, for that matter, more than one. And then just as the plaintiff gets to call experts to testify to these matters, the defendant can too, and the defendant will if he, as it descends, at least in my view, and you find somebody that you think is highly qualified, testify contradicting what the other side's experts said. Now, at the end of the day, who gets to decide the answer?
The jury. Now, philosophically, you may think that's smart or dumb. I'll leave that to you.
But we've been doing it this way. I'm using we in a grand collective sense, tracing it all the way back to England shortly after the Norman invasion in 1066, William the Conqueror and all that, for nearly 1,000 years. And that's how we decide these cases.
So for better or worse, the lay people sitting in the box are the ones who decide what the standard of care is and whether on a particular occasion, Dr. Smith did or did not comply with that standard. Now, I finally get around to your question was why would you want to do this? Well, you've already pointed out a couple of things, John.
First, you do make money doing this. You know, your time is valuable as a physician. And, you know, it's not at all unusual.
In fact, it would be unusual not to have an expert charge less than let's say $300 an hour. 400 is not unusual. 500 is not unusual.
600 is maybe pushing it a little bit, but not all that much. You know, the sky's the limit. There is a downside.
If your fee is so high as to put you out of reach, you may not get hired because you're simply too expensive. Or the lawyer is willing to bear the freight for whatever that fee happens to be and it warrants into many thousands, but the other side gets to find out what your fees are and can cross-examine you. And a skilled examiner will have no trouble suggesting that because you're $20,000 richer or having got involved with this lawsuit that you're a hired gun and therefore your credibility is out the window.
Now, the jury will not necessarily reject your testimony because of the 20,000 or 40,000 or whatever it is, but it might. So bear that in mind. But there is a source of revenue here and it's not trivial.
There are people who push this really hard. I had a, I mean, one of the most enjoyable aspects of malpractice defense work is cross-examining the other side's expert, at least when you've got some goods on. I mean, I had an expert who testified against me many years ago that I remember vividly.
He maintained a private airplane. The better to go from deposition to deposition to courthouse to courthouse all across the United States and made a handsome living doing this and simply didn't bother seeing patients. Well, it wasn't that hard to cross-examine this guy.
Maintaining airplanes is an expensive proposition. You have to earn a lot of money to be able to do that. And he did, he did it by testifying.
He would testify all over the country all the time and he didn't bother seeing patients because he was too busy testifying. Now here in Virginia, he would not qualify because there's a rule here that says that if you don't have an active clinical practice or at least have had one within two years of the relevant day, then you're no longer qualified. However learned you might've been 20 or five years ago, you're out of business.
Not every state has that rule. So more elaboration perhaps than was necessary, but income. The other thing is it will help you develop a better understanding of the legal system.
Doctors have extensive educations going for years and years and years as I don't need to tell this audience, but seldom do they get much exposure to or experience with the legal system. This is one way to learn about. As you pointed out, John, this is an intellectual challenge.
It is clearly an intellectual exercise here. When you're talking to a jury, remember these folks have no relevant education or training. The wisdom in the field is to suggest that you ought to assume that these folks have a seventh grade education.
Not to disparage anybody, not to put them down, but just because they really don't have much to go. So you've got to take concepts that you and other really smart people have spent a lifetime studying, understanding, agonizing over, and reduce it, translate it in a manner that lay people can understand. Got to keep it simple enough that John Q.
Public, listening carefully, can follow it. So teaching lay folks about complicated subjects is not necessarily an easy thing to do. It is definitely a challenge.
And then when you get cross-examined, if you weren't challenged before, unless the cross-examiner is really lousy, which is possible, then you're truly about to be challenged. I mean, that's the whole game. The game with cross-examination is to try to discredit this witness by whatever means you can come up with short of breaking the law.
And there are a lot of ways to do that. So you need to be on your toes if you're going to survive cross-examination. And if you don't survive it, your chances of being hired again are diminished a little bit.
On the other hand, if you come through it like a champ, the same guy that hired you last time is going to be interested next time if there is an opportunity. Or there isn't, but there's a network among lawyers on both sides of the V, as we call it, the plaintiff's bar and the defense bar. If I need an expert on some topic where I've never had to hire an expert before, I might call up one of my buddies on the defense side and say, hey, Charlie, I had a case coming up.
I need a pediatric neurosurgeon. Can you help me? Yeah, do you have any experience?
And he'll say, no, I'm sorry, I don't either. But he might say, but talk to Mary Smith down the street. I think she hired somebody like that.
And I call Mary up and Mary may be able to say, well, talk to Dr. X at Mecca University. Guy's terrific. And I do that.
Well, we talk to each other and we know about these things. You're also, and this might sound corny, you're also making a meaningful contribution to the justice system. Remember, the jurors, I'm convinced, truly do want to do the right thing.
They want to be fair, they want to be just, and they struggle to do this correctly. And if you're able to help them reach a logical, sound conclusion, not only will they be grateful, but you have genuinely contributed to our country, at least as I see things. And of course, if you testify on the defense side, and I never did and never will do plaintiff's work, you're helping your fellow docs.
Now, I don't know, John, have I, should I go over to the negatives or should I stop?
John
Good question. Well, I guess, yeah, why not? It's kind of addresses this issue.
If someone was thinking about pursuing this work, there's probably certain things you'd want them to know about it, what they should expect, the good, the bad, the ugly. So yeah, why don't you take that on now?
Joe
Well, I've already dwelled at some length on the cross-examination phenomenon. Cross-examination is tough, at least if your examiner is worth his pay. I mean, if he's any good, he'll do a good job.
And that means you've got to be very, very alert. It's time-consuming. If you're going to do a good job, you've got to review the medical records.
Many times in malpractice cases, the medical records are extensive. And the days when we relied upon paper, you know, you got two feet worth of documents to plow through. And granted, doctors read charts all day, every day, and they know how to do it.
But something that doctors, frankly, don't often do is they may not necessarily read the nurse's notes, or the PT's notes, or the OT's notes, or never mind the NA's notes in a nursing home case. You know who does? Plaintiff's lawyers.
So to be aware of what's in potentially damaging information in the nurse's note written at two in the morning, you probably need to read that. Even if in your actual work in clinical practice, you want to see what your consultant had to say in his note. You want to maybe see the progress notes from your colleagues who wrote a note in the chart yesterday.
And you're not necessarily going to pay so much attention to what the occupational therapist had to say. But in litigation, what the OT said might very well be important. So it takes a lot of time.
You're also going to spend a lot of time with lawyers. Some people would consider that cruel and unusual punishment. Depends on your point of view, but if you don't particularly like lawyers, and if you don't, you are not unique in the medical profession, factor in that you're going to spend a lot of time with people that you may not necessarily like.
Now, on the other hand, if I'm hiring you, one of the things that I will do my best to do is to make you happy, since I want you to cooperate with me, work hard with me, do a good job for my client. So I'm going to do my best to keep you happy, but I can't change the fact that I'm employed. Now, and of course, if you do plaintiff's work, you will run the risk of antagonizing your colleagues.
Now, flip side of that. Just as I can portray the guy with the private airplane as a prostitute, if you did nothing but defense work all day, every day, well, I'd be grateful, I would kiss your feet, but you wouldn't be vulnerable to cross by a plaintiff's lawyer who would point out that in the last 16 cases you've reviewed, all of them were for defense counsel. And you refused 17 opportunities to represent, not to represent, but to testify on behalf of plaintiffs, if that were true.
So factor that in as you're thinking about these things. So it can be enjoyable, but it also has its downsides. And one thing I would caution you about is you want to be careful about advertising.
Some docs are eager to do this kind of thing, make that very clear. When I was a baby lawyer a long time ago, I received a letter from a doc in the Central Virginia area addressed to me at my law firm and inviting me to hire him as an expert. No, I'm sorry, I got my story mixed up.
That's not quite correct. Instead, it didn't go to me directly, it went to a guy down the hall, one of my colleagues, one of my fellow lawyers in the firm, whose field was construction law, didn't do malpractice work at all. But he wandered down the hall, he said, Joe, take a look at this, I don't know if this guy's any good or if you're interested, can't help me, but maybe he can help you.
Well, I didn't hire him. And frankly, one reason was because I try to avoid hiring people who advertise. Why?
Because of the very thing that happened when the guy came to trial, by chance, a year or two later. At the right point, when my opportunity to question him came, I said, Dr. So-and-so, who is Ron Eimer? And he said, I have no idea.
I said, well, you write letters to Ron, don't you? I'm sorry, I'm not familiar with this person. I said, all right, well, let me show you Exhibit A.
And I show a copy, of course, to opposing counsel, and I show a copy to the court. Take a look at Exhibit A, if you would. Do you recognize your signature at the bottom of that letter?
Yes, I do. Is that your signature? Yes, it is.
Okay, and Ron Eimer is the person to whom this was addressed, is he not? Yes, and it says Ron Eimer Esquires. He's a lawyer, is he not?
Yeah, and beneath that, it says McGuire Woods and Battle, which was the name of the firm at the time. That's a law firm, is it not? Yes, it is.
So you were ready to Mr. Eimer to get the opportunity to testify, weren't you? And of course, you're getting well-paid for your time this afternoon, are you not? So your advertising really paid off pretty well, didn't Mr. Plaintiff's lawyer?
You know, I can be an SOB when I need to be. So think about that. Doesn't mean you never advertise, or you shouldn't.
Maybe you have to, but be careful because you're creating potential cross-examination equipment and believe me, I won't hesitate to use it if I think it's going to help my client prevail in the case. Also, be careful if you testify too much, as I indicated earlier, you undercut your credibility. Even if there isn't any rule that says you're out if you don't have an active clinical practice, as there is in Virginia, if I can portray you as somebody who testifies for a living, doesn't really take care of patients, then I have severely harmed your credibility because the jury wants to hear, almost always.
They want to hear from docs who actually care for folks who are sick or who are injured, not from people who don't do that for a living. It's too easy for opposing counsel to paint you as incredible, not worthy of belief. Also be careful of organizations that group experts together.
There are companies in the business, there are companies that will advertise to lawyers and say, look, we've got a whole stable of experts in every subject from A to Z, and they really do. They've got from anthropology to zoology or whatever. You need an expert in whatever field, we can help you out.
And they can't. And I won't mind admitting that at times I have relied upon organizations such as that, but be careful because if you get in bed with those guys, you'll have a contract with them. The contract will likely be discoverable.
Contract may very well have language in it that people like me will be able to use to hit you over the head on cost of examination. Think about proof sources. They're important.
You know, it's not an obvious thing. And I had to try a few cases before I began to understand really how important these paper trails may be. So, you know, think about these negatives as well as the positives.
I'm not trying to talk you out of doing this in the least. I've had some, I'm deeply grateful, and I mean that with the most profound sincerity to experts who helped me out and helped me get a doctor's chestnuts out of the fire in a way that was convincing to the court, convincing to the jury more important. And I'm indebted to those folks and I would help them any way I could.
And on the other hand, if you testify against me, I'm going to try and crush you if I possibly can. You may crush me, but that's the name of the game.
John
I do have two or three other little questions before I let you go. One is, you know, people always ask, okay, well, how much am I going to have to do with that massive chart review? How much am I going to have to do for prep and writing report?
And then, oh, do I have to, you know, go to a deposition, prepare for deposition? And what about how often will I end up in court? What's your experience been with that?
Joe
The amount of reading and preparation is largely a function of the complexity of the case and the scope of the medical record. If the chart is comparatively skinny and the facts are simple, well, frankly, there's a pretty good chance of mine I go to court, but if it does, then your prep will be comparatively painless. Now, you will have to spend time with the lawyer that hired you.
That's important. He needs to understand how you're going to answer a particular question, and you need to understand the rules of the road, and the lawyer's job is to acquaint you with them. The lawyer is not there to tell you to answer a certain question a certain way, but the lawyer can try to anticipate what some of the questions will be and can discuss with you various ways to handle them. In the end, it's your opinion, not the lawyer's.
You're the expert, not the lawyer, so you have to answer it as you see fit, but the lawyer can point out that, I don't know, if I look at my wall over there, there are probably six or eight adjectives I could use to describe its color, none of which would be incorrect or untrue, but one might provide in the mind of the listener a different image, maybe a better image, than choice number six, perhaps, and there's nothing wrong with discussing those possibilities.
As far as depositions, that's a matter of state law. All of this stuff is governed by, nearly all of it, is governed by state law. Some states do not make provision for depositions, and it's a matter of choice.
It's a matter of grace and agreement between the lawyers, but you can't force a deposition of the opposing expert in some states. In other states, you can. It's a matter of right.
You get to do it. You can count on the deposition taking probably a good two, three hours and another one or two before that for prep time. Remember, that's all billable.
You get to bill for all of it. I take the position that the prep time, you bill to the lawyer that hired you. The deposition time, you bill to the other lawyer because he's the one who determines how long that deposition goes.
Now, some depositions are endless. I mean, I've had them go for two days, but that's rare. That's unusual.
I've had them be 35 minutes. That's equally rare and unusual, but a couple of three hours, maybe four, that's not unusual. That's fairly typical.
Trial work, you may be on the stand for a relatively short period of time. Often, that's not the case. We'll get to that in a second.
What you may not realize, though, is you have to be available on call. The lawyer does not control the pace of the trial, at least not completely. The judge has the most control over that.
The judge is going to be sensitive to when the jury needs to get up and get a bite to eat or to go to the john or whatever it might be. Things happen. You've got a game plan before the trial.
You have six witnesses. You want to call them in this order. You think you're going to need an hour for this one, 30 minutes for that one, two hours for that one, and so on.
You make all those plans, but while the planning is a good idea, very often you can't stick with that plan. You think that you're going to call your expert at roughly two o'clock on the second day of trial. Well, you can tell him that and he can plan around it, but it might not be until the third day of trial, or it might be 10 o'clock that morning, or it might be some other time.
For a practicing clinician running an office or a hospital practice too, for that matter, that's really difficult to deal with. Yet, the lawyer needs you to have that kind of flexibility because he just doesn't have control over the point in time at which you're going to be needed. When he needs you, he needs you.
No joke. If you're somehow unable to put an expert on, chances are you lose that case. It's very, very difficult to prevail without your expert.
When you sign up, recognize that you're making a commitment and it may be very inconvenient to you. If that's not acceptable, I fully understand and respect that, but don't sign up. Now, discuss it, of course, with a hiring lawyer.
There are circumstances when the degree of control is a little better than I've suggested, and maybe it won't be so difficult. But do realize that trials are unpredictable animals, and things happen at a rate, at a pace that you may not be able to predict.
John
The other sort of short question I have is what's the demand like now, and is it related more to specialty and expertise, or is there an ongoing demand, or is the demand already kind of flooded with expert witness? What's that about?
Joe
Well, this is the United States, and it's 2024. We live in the litigation capital of the known universe, and our enthusiasm for litigation, we as Americans, does not seem to have abated at all during the course of my career. If anything, it may have increased.
And the national pastime is not baseball. The national pastime is litigation. Now, of the physicians out there, and what are they?
A million doctors, maybe, in the whole United States? There's a certain number of them, a fairly high fraction. You want nothing to do with any of this.
They flat will turn you down. And that's their right. They have every right to refuse.
There's no duty to do this. And that means that your pool to choose from is narrow. Of those willing to testify, there are some that I wouldn't hire because it's too easy for them to be cross-examined.
Of those that I am willing to hire, it could be that my number one draft choice is going to be on vacation on the day of trial. And so I'm out of luck. I can't use that guy.
And so for a whole variety of reasons, the chances are good, I would think, that the demand will be there. And there is a market for these services. If it is of interest to you, and you don't want to advertise, you can quietly over lunch or a game of golf or whatever floats your boat, mention it to Dr. So-and-so. Or maybe mention it to, if you happen to know a guy working for, a person working for a malpractice insurance company, who after all will be the ones to pay your freight at the end of the day. Say, you know, I'm curious about this. Tell me about it.
And you don't put anything in writing because that's too easy to find. But a little conversation like that could pave the way to opportunities. So you want to be discreet about it.
And I wouldn't go beating the drum, but let the word get out in subtle and not too obvious manner. And you might get some opportunities. You might find that you really like it.
Then again, you might hate it. So go to school on whatever opportunities you do get and judge whether to keep up with this sort of thing based on your initial experiences.
John
I do have one more question. And this is a tangent that we kind of discussed a little bit during a prep meeting that we did a while back. And it was this idea that as a physician, I get really frustrated.
I'm tired of people telling me what to do. And, you know, the heck with it. I'm going to go to law school and somehow take this out on somebody else.
What's your advice? Or have you heard that comment before? I have heard that comment before.
Joe
I get phone, not every day by any means, but I get from time to time, I get a phone call from Dr. So-and-so from out of the blue, somebody I've never heard of, probably will never speak to again. But somehow, he got hold of my name. And he says, tell me about law school.
Tell me about being a lawyer and all that. And I've developed, I'd like to think, a fairly accurate set of antennae for telling whether the inquiry results from a sincere curiosity about how you combine these fields and whether it would be of interest versus the kind of physician you just described, John, who's thoroughly hacked off because some person somewhere who doesn't have anywhere near his credentials or his training or his knowledge or his experience or the pressure or the responsibility of caring for a patient has just told him, well, no, we're not going to provide prior authorization for whatever it is you want to do.
Well, I understand why you would be very angry about that. If I were subjected to that, I'd be furious. And I don't mind admitting that, however, is not, repeat not, a reason to go to law school.
Law school is a three-year investment. Nowadays, you're looking well at six figures. It's a time when, yes, you can work part-time as I did, but you're not going to be able to earn the fees that you could in full-time practice in medicine.
And, you know, it's not as hard as medical school, in my opinion, but it's not a walk in the park either. There's a lot of reading to do. Some of it is fairly difficult sledding.
Some of the professors you'll like, and frankly, if your experience is anything like mine, some of them you won't. And, of course, you'll be in there with a bunch of young leper snappers, quite possibly. Now, not so much as years ago, but still, you'll be older than most, probably.
Those factors may not necessarily be to your liking, or maybe they will be, but it is a major commitment. It's not just something you decide to do on the odd Thursday for no particular reason. So, if you're angry about the way medicine is being practiced, I understand that.
React to it in some way that makes sense, but don't, on that basis and that basis alone, go to law school. One of the reasons, one of many, that I went to law school, quite honestly, is that I saw a lawsuit wreck the life, and I'm not exaggerating here, I think that's not an exaggeration, wreck the life of a young doctor who was a year ahead of me in training, a fellow that I truly looked up to, a fellow I consciously tried to emulate, because I thought he's the ideal resident by the time this happened, he was a fellow.
I'd like to be just like Dick. And something happened, and he got sued, and he just wasn't the same person. And frankly, I don't think his patients got, at least for a length of time, got quite the same service that they did before.
And I thought, this is wrong. Somebody ought to do something about that. But this was after having thought about it for, I don't know, however long it is from seventh grade to senior residency, a long time, on and off, and weighing many variables and asking people about it, talking to people who are in the field, etc.
You don't do it on the spur of the moment. You don't do it because you're ticked off, however justified your anger may be. You do it because you want to be a lawyer and practice law.
Otherwise, don't bother.
John
I tell you, looking back though, it does sound very interesting. I'm way past that hill. But anyway, okay, so last thing, how do we get a hold of you?
Joe
The best bet, frankly, is to either call me or send me an email, and we'll set up a time to chat. The firm's name is Christian and Barton, B-A-R-T-O-N. And if you Google McMenamin, Christian and Barton, you won't have any trouble.
You might not have any trouble with Joseph P. McMenamin. There aren't that many of us, even in Ireland, and it's still an unusual name.
John
And I'm more than happy to talk to you. All right, well, with that, I want to thank you so much for spending this more than half an hour here today talking about this very interesting topic. So, Joe, with that, I guess it's time to say goodbye.
Joe
Well, thanks very much for the opportunity, John. I enjoyed it, and I hope it's of interest to your audience.
John
You know, one thing that we forgot to mention, so I will throw it here at the end, is that we're going to be seeing you at the Summit, which is going to be in place, is going to be going on within a week or two of the release of this. So, I think my listeners know, because I've mentioned it in other podcasts, but Joe's going to be speaking on a different area of his expertise, having to do with the structure of corporations and starting a small business, those kinds of things. And that'll be running the 16th through the 18th of April of this year in the second annual Summit.
And, boy, we really look forward to hearing from you there, Joe. That'll be fantastic. Thank you, John.
Looking forward to it myself. All right. Bye-bye.
Bye now.
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Priceless Advice for the New Expert Witness
John
I've always been interested in expert witness work as an attractive side gig. You know, it's interesting, it's intellectually stimulating, it pays well. And in fact, I've had a couple of physicians here on the podcast before, but I've never had an attorney who actually engages or hires or whatever you want to call it, expert witnesses for their cases.
So I'm really happy to have today's guest here. Welcome to the podcast, Joe McMenamin. Thank you, John.
I'm happy to be here. I appreciate the opportunity. I have to just say that it's hard for me not to call you Dr. Joe, because as Joe was going to explain, he does have both the MD and the JD, so he's going to get into why and how that happened. But again, his work has been, you know, as the attorney engaging the physicians to help him out on cases. So that's the perspective we really want to get today. So why don't you go ahead and tell us a little bit about your background and education, how you ended up where you are these days.
Joe
Sure, John. Yes, I went to med school. I'm not a young whippersnapper.
I went to med school between 74 and 78 at Penn, and then did internal medicine at Emory from 78 through 81. And towards the end of that residency, I applied to law school. It was a concept that I had been thinking about on and off since boyhood, and never really made up my mind for sure until pretty late in the game.
In fact, I was applying to nephrology fellowships at the same time that I was applying to law school. Decided on the latter and went to Penn once again, finishing in 85. It took me four years because halfway through the first year, I had to take a year off when we discovered we were pregnant and I had to put a few dollars together.
So I was a moonlight ER doc for a while. And then finishing law school in 85, I went to practice at a large international firm, was there for a good many years. And then about 10, well, in 2013, I did solo stint for about a year, which was, sorry, 10 years, which was quite a change.
And now I'm at a firm called Christian & Barton in downtown Richmond. Curiously enough, in the very same building where I began my career, but with a different firm. And health law is the main focus of what I do for what I assume are obvious reasons.
John
Very nice. Yeah, that must've been an interesting few years there. Have to jump back and forth, you know, in your education, work again clinically.
How did that year go?
Joe
Well, actually it was longer than a year. I mean, I began my ER moonlighting career as a resident, as a JAR and an SAR. Kept it up during law school, all the way through law school, which is entirely doable.
Law school's curriculum is a very different animal from medical school. The one year that was full-time was occasioned, as I say, by the impending birth of our firstborn and the need to put a few dollars together.
John
Since that time, when you took that first, I think full-time job as an attorney, you never then went back to clinical work part-time or moonlighting or anything?
Joe
No, no, I haven't touched a patient since, good Lord, 1985. And so as I tell lay people, if your back hurts or something, I am not the guy you want to talk to. I mean, Rusty doesn't even begin to cover me.
On the other hand, everything I do benefits from and utilizes in some fashion and to some degree, my education and training in medicine. And I've been fortunate to be able to develop a legal practice that capitalizes upon that stage in my education. And I'm grateful for it to this day.
Excellent.
John
Well, the first question I have relative to this, the reason you're here today to understand this work as an expert witness is really to get to your side of the story, your take on it as someone who's engaged physician. So why don't, let's see, why don't we just start by saying, telling us about, you know, why is there a need for expert witnesses? Why this should potentially be an interesting thing to do on the side for physicians, most of whom will still be practicing when they do this, although I understand not always.
And just kind of tell us about your perspective on those topics.
Joe
Well, the reason that expert witnesses exist and not just in medicine, but a great many other fields is that in US law, pardon me, which was stolen in large measure from the British, a lot of decisions are made by juries. And, you know, people wax eloquent about the wonders of the jury system. And indeed it does have a lot to recommend it.
But jurors are by definition lay people. They're chosen from the ranks of registered voters or from drivers or what have you. And it's not impossible theoretically that the next jury that comes along might have a Nobel Laureate in physics on it.
But the probability of that is pretty remote. And even if you did, that doesn't mean that this very bright, very capable person knows anything about how to work up an acute abdomen or what have you. So the idea is to bring in people who by virtue of their knowledge, skill, training and experience are able to enlighten the jury about the menace, about what is expected and whether in a given instance, the defendant, the person being sued did or did not comply with what we refer to as the standard of care.
And because we recognize that however intelligent, somebody with no medical training or background is not going to have any knowledge or at least probably has no knowledge or if he does, he has precious little about medical topics, we bring in physicians to serve as experts. Now, if the case involves, let's say toxicology, we might not want a physician, we might want a toxicologist or it involves a totally different field. I mean, there's all sorts of experts in all sorts of fields that limited only by your imagination but an accountant could be an expert witness potential or a geologist could be an expert witness depending upon what the nature of the claim is.
I focus of course, on healthcare matters. So naturally, the vast majority of the doctors, sorry, of the experts I've hired have been physicians.
John
Okay. Now, what is your understanding of why this might be interesting to do for a physician? I'm sure some of the people come in and do it maybe with some misconceptions but why would you think it'd be something that would be of benefit for a physician to pursue?
Joe
Well, I'll start by suggesting that it is not for everybody. You could be the best doctor on planet earth and perhaps not be a very effective witness. Reverse is also true.
You could be an extraordinarily talented witness but not necessarily a great doc. They're entirely different skill sets, at least as I see things. It may be useful to have a little background in evidence law to preface what my remarks on this.
There's a distinction in the law of evidence between fact witnesses and expert witnesses. A fact witness is just that, somebody who, for whatever reason, has knowledge of facts pertinent to the case. So I leave work this afternoon and I happen to see the Chevy hit the Ford in the intersection.
I don't know the driver of either one. I don't know what either one was doing. I frankly don't even want to be involved but I happened to be there at the time.
I saw what I saw. In the event a lawsuit ensues from that situation, then whichever side thinks my testimony would be useful to its version of the case, can require me if necessary, or can certainly ask me, and if need be, back it up by law, and require me to come to court to testify to whatever I saw. And this proponent, the side that has asked me to come, can ask me a series of questions designed to elicit from me whatever knowledge I have of this situation.
After that, the other side, the side representing whoever the defendant is, if I'm on the plaintiff's side of it, will cross-examine me, ask me a series of questions intended to suggest to the jury that maybe I'm not such a reliable witness. Maybe I didn't see things very clearly. Maybe it was a cloudy day and my vision was hazy because, I don't know, I'm not wearing my glasses.
Or maybe I'm not reliable. Or maybe I'm friendly with the driver of the other car. Whatever, all of that is perfectly kosher, perfectly legitimate.
And, you know, if I do well on cross-examination, the side that asked me to appear will be pleased, and if I don't, then the side that did the cross-examination will be pleased. But the point is that all I can testify to is what I saw or heard or what I know. I cannot offer an opinion.
I cannot say, I think the driver of the Chevy was at fault, even if I really do believe that, and even if, in fact, there's good basis to say that that's true. That's an opinion I cannot offer. Moreover, I don't get paid for my time.
It's expected of me as a citizen to show up when I need to and to testify. An expert witness is a different animal. An expert witness, first of all, is a volunteer.
Nobody can force you to be an expert. You have to willingly accept the opportunity if it is given to you. Second, you do get to charge for your time.
The law recognizes that every moment that you spend horsing around with some lawyer some place is a moment that you cannot be seeing patients or whatever it is you normally do, and as a result, you're losing money in this proposition unless you can bill for it, and so you can. And third is, yes, indeed, you can give opinions. That's the whole point, in fact.
The reason that whatever makes you an expert is that you have knowledge that most people don't, and therefore your views on a particular technical or scientific or medical or otherwise complicated subject are intended to be, and we hope are, useful to this jury of laypeople who have no prior exposure to these concepts, have very little understanding of them, and the biggest job that the expert has is to be a teacher, at least as I see things. You're there to teach the jury what the facts are. Now, even that's a bit of an oversimplification because although I think the distinctions I just drew between fact witnesses and expert witnesses are correct, there are also two types of experts.
There are so-called consulting experts, and then there are testifying experts. A consulting expert, as the name suggests, serves as a consultant to a lawyer, or maybe a group of lawyers, and is chosen presumably because of his knowledge, whatever his expertise may be in the judgment of those hiring him, is highly valuable, highly relevant to whatever is at issue. But that person does not appear in court, does not testify, and the side hiring him is under no obligation to identify him to the other side, nor to tell the other side, even that he exists, much less what his credentials are, or what his opinions might be, or what the basis for those opinions might be.
He's purely behind the scenes. The testifying expert, on the other hand, is the one that Hollywood will make a movie about, or at least feature an expert in a movie about a trial. This is the person who, yes, will indeed have educated the lawyer ahead of time, presumably, but will also be there in court, will take an oath to tell the truth, will then testify in response to questions posed to him by the sponsoring lawyer, and will respond in turn to the cross-examination questions offered by the sponsoring lawyer's opponent.
Now, both the plaintiff, that's the person bringing the suit, and the defendant, the person being sued, have the right to call an expert, or sometimes multiple experts, depending upon the nature of the case and its complexity. It's not unusual, for example, to have at least two experts on both sides. Why?
Well, because the malpractice theory proceeds on the basis of ordinary negligence law, which has four components, classically, duty, breach, causation, damages. Nothing novel here. I'd be disappointed in any first-year tort student who couldn't rattle that list off just as well as I can.
Duty. If you're my doctor, I'm your patient, you owe me a duty. It's pretty much that simple.
It's usually straightforward, not so much. If I'm an accident victim on the side of the road, and you are driving past, and you see me there, and you're able to help, and you decide to help, or you decide not to help, that's duty. Generally, that's not contested in these cases.
It's pretty clear that you do or you don't own a duty. Breach is, in contrast, highly contested. That's the heart and soul of the case.
Did you or did you not breach the standard of care at the relevant time caring for this particular patient? The plaintiff's expert's job on standard of care is to say the standard of care requires A, B, and C. Doctor so-and-so, the defendant failed to do, did do A and B, but he didn't do C.
That's a breach of the standard of care. The second expert that that plaintiff may call is a causation expert, because that's the third element of the story. Again, it's duty, breach, causation, damage.
It's causation is the so what question. I don't know. I'm a general internist, and you come into me with a history of a bad cough.
It seems to be getting worse. You're coughing up blood. You've lost a bunch of weight.
You've got some chest pain. Oh, and by the way, you've got a 100-pack year smoking history. And on examination, I discover that you have a hard mass in your left supraclavicular fossa.
And then on X-ray, there's a mass demonstrated in the left upper lobe, but somehow, I don't put two and two together, and I say, well, sorry, you've got the cough, nothing serious. Probably go away in a few weeks. I'll see you again next year for your annual physical.
But after that appointment, you leave my office, you cross the street, and you're run over by a bus, and boom, you're dead right on the spot. Is there a cause of action against me for medical malpractice for failing to diagnose what I hope was a reasonably clear case of lung cancer? The answer is no.
Why? I might have reached a standard of care in not being able to make that diagnosis, but I didn't kill you. My mistake didn't kill you.
The bus killed you. So maybe there's a claim against the bus company or the driver or both. Maybe there's a claim against the city for not putting a stop sign there.
I don't know. Use your imagination. But there's no claim against me as the doc because I had nothing to do with your death.
There are a class of experts who testify to causation, which is, from a medical point of view, often the most complicated and also the most interesting part of a malpractice case. Why did so-and-so develop condition X? Or why did he die at the age of whatever when he should have lived another 10 years or so it could be argued?
Now, one doctor could serve as both the standard of care expert and the causation expert, but it's not unusual to have one of each or, for that matter, more than one. And then just as the plaintiff gets to call experts to testify to these matters, the defendant can too, and the defendant will if he, as it descends, at least in my view, and you find somebody that you think is highly qualified, testify contradicting what the other side's experts said. Now, at the end of the day, who gets to decide the answer?
The jury. Now, philosophically, you may think that's smart or dumb. I'll leave that to you.
But we've been doing it this way. I'm using we in a grand collective sense, tracing it all the way back to England shortly after the Norman invasion in 1066, William the Conqueror and all that, for nearly 1,000 years. And that's how we decide these cases.
So for better or worse, the lay people sitting in the box are the ones who decide what the standard of care is and whether on a particular occasion, Dr. Smith did or did not comply with that standard. Now, I finally get around to your question was why would you want to do this? Well, you've already pointed out a couple of things, John.
First, you do make money doing this. You know, your time is valuable as a physician. And, you know, it's not at all unusual.
In fact, it would be unusual not to have an expert charge less than let's say $300 an hour. 400 is not unusual. 500 is not unusual.
600 is maybe pushing it a little bit, but not all that much. You know, the sky's the limit. There is a downside.
If your fee is so high as to put you out of reach, you may not get hired because you're simply too expensive. Or the lawyer is willing to bear the freight for whatever that fee happens to be and it warrants into many thousands, but the other side gets to find out what your fees are and can cross-examine you. And a skilled examiner will have no trouble suggesting that because you're $20,000 richer or having got involved with this lawsuit that you're a hired gun and therefore your credibility is out the window.
Now, the jury will not necessarily reject your testimony because of the 20,000 or 40,000 or whatever it is, but it might. So bear that in mind. But there is a source of revenue here and it's not trivial.
There are people who push this really hard. I had a, I mean, one of the most enjoyable aspects of malpractice defense work is cross-examining the other side's expert, at least when you've got some goods on. I mean, I had an expert who testified against me many years ago that I remember vividly.
He maintained a private airplane. The better to go from deposition to deposition to courthouse to courthouse all across the United States and made a handsome living doing this and simply didn't bother seeing patients. Well, it wasn't that hard to cross-examine this guy.
Maintaining airplanes is an expensive proposition. You have to earn a lot of money to be able to do that. And he did, he did it by testifying.
He would testify all over the country all the time and he didn't bother seeing patients because he was too busy testifying. Now here in Virginia, he would not qualify because there's a rule here that says that if you don't have an active clinical practice or at least have had one within two years of the relevant day, then you're no longer qualified. However learned you might've been 20 or five years ago, you're out of business.
Not every state has that rule. So more elaboration perhaps than was necessary, but income. The other thing is it will help you develop a better understanding of the legal system.
Doctors have extensive educations going for years and years and years as I don't need to tell this audience, but seldom do they get much exposure to or experience with the legal system. This is one way to learn about. As you pointed out, John, this is an intellectual challenge.
It is clearly an intellectual exercise here. When you're talking to a jury, remember these folks have no relevant education or training. The wisdom in the field is to suggest that you ought to assume that these folks have a seventh grade education.
Not to disparage anybody, not to put them down, but just because they really don't have much to go. So you've got to take concepts that you and other really smart people have spent a lifetime studying, understanding, agonizing over, and reduce it, translate it in a manner that lay people can understand. Got to keep it simple enough that John Q.
Public, listening carefully, can follow it. So teaching lay folks about complicated subjects is not necessarily an easy thing to do. It is definitely a challenge.
And then when you get cross-examined, if you weren't challenged before, unless the cross-examiner is really lousy, which is possible, then you're truly about to be challenged. I mean, that's the whole game. The game with cross-examination is to try to discredit this witness by whatever means you can come up with short of breaking the law.
And there are a lot of ways to do that. So you need to be on your toes if you're going to survive cross-examination. And if you don't survive it, your chances of being hired again are diminished a little bit.
On the other hand, if you come through it like a champ, the same guy that hired you last time is going to be interested next time if there is an opportunity. Or there isn't, but there's a network among lawyers on both sides of the V, as we call it, the plaintiff's bar and the defense bar. If I need an expert on some topic where I've never had to hire an expert before, I might call up one of my buddies on the defense side and say, hey, Charlie, I had a case coming up.
I need a pediatric neurosurgeon. Can you help me? Yeah, do you have any experience?
And he'll say, no, I'm sorry, I don't either. But he might say, but talk to Mary Smith down the street. I think she hired somebody like that.
And I call Mary up and Mary may be able to say, well, talk to Dr. X at Mecca University. Guy's terrific. And I do that.
Well, we talk to each other and we know about these things. You're also, and this might sound corny, you're also making a meaningful contribution to the justice system. Remember, the jurors, I'm convinced, truly do want to do the right thing.
They want to be fair, they want to be just, and they struggle to do this correctly. And if you're able to help them reach a logical, sound conclusion, not only will they be grateful, but you have genuinely contributed to our country, at least as I see things. And of course, if you testify on the defense side, and I never did and never will do plaintiff's work, you're helping your fellow docs.
Now, I don't know, John, have I, should I go over to the negatives or should I stop?
John
Good question. Well, I guess, yeah, why not? It's kind of addresses this issue.
If someone was thinking about pursuing this work, there's probably certain things you'd want them to know about it, what they should expect, the good, the bad, the ugly. So yeah, why don't you take that on now?
Joe
Well, I've already dwelled at some length on the cross-examination phenomenon. Cross-examination is tough, at least if your examiner is worth his pay. I mean, if he's any good, he'll do a good job.
And that means you've got to be very, very alert. It's time-consuming. If you're going to do a good job, you've got to review the medical records.
Many times in malpractice cases, the medical records are extensive. And the days when we relied upon paper, you know, you got two feet worth of documents to plow through. And granted, doctors read charts all day, every day, and they know how to do it.
But something that doctors, frankly, don't often do is they may not necessarily read the nurse's notes, or the PT's notes, or the OT's notes, or never mind the NA's notes in a nursing home case. You know who does? Plaintiff's lawyers.
So to be aware of what's in potentially damaging information in the nurse's note written at two in the morning, you probably need to read that. Even if in your actual work in clinical practice, you want to see what your consultant had to say in his note. You want to maybe see the progress notes from your colleagues who wrote a note in the chart yesterday.
And you're not necessarily going to pay so much attention to what the occupational therapist had to say. But in litigation, what the OT said might very well be important. So it takes a lot of time.
You're also going to spend a lot of time with lawyers. Some people would consider that cruel and unusual punishment. Depends on your point of view, but if you don't particularly like lawyers, and if you don't, you are not unique in the medical profession, factor in that you're going to spend a lot of time with people that you may not necessarily like.
Now, on the other hand, if I'm hiring you, one of the things that I will do my best to do is to make you happy, since I want you to cooperate with me, work hard with me, do a good job for my client. So I'm going to do my best to keep you happy, but I can't change the fact that I'm employed. Now, and of course, if you do plaintiff's work, you will run the risk of antagonizing your colleagues.
Now, flip side of that. Just as I can portray the guy with the private airplane as a prostitute, if you did nothing but defense work all day, every day, well, I'd be grateful, I would kiss your feet, but you wouldn't be vulnerable to cross by a plaintiff's lawyer who would point out that in the last 16 cases you've reviewed, all of them were for defense counsel. And you refused 17 opportunities to represent, not to represent, but to testify on behalf of plaintiffs, if that were true.
So factor that in as you're thinking about these things. So it can be enjoyable, but it also has its downsides. And one thing I would caution you about is you want to be careful about advertising.
Some docs are eager to do this kind of thing, make that very clear. When I was a baby lawyer a long time ago, I received a letter from a doc in the Central Virginia area addressed to me at my law firm and inviting me to hire him as an expert. No, I'm sorry, I got my story mixed up.
That's not quite correct. Instead, it didn't go to me directly, it went to a guy down the hall, one of my colleagues, one of my fellow lawyers in the firm, whose field was construction law, didn't do malpractice work at all. But he wandered down the hall, he said, Joe, take a look at this, I don't know if this guy's any good or if you're interested, can't help me, but maybe he can help you.
Well, I didn't hire him. And frankly, one reason was because I try to avoid hiring people who advertise. Why?
Because of the very thing that happened when the guy came to trial, by chance, a year or two later. At the right point, when my opportunity to question him came, I said, Dr. So-and-so, who is Ron Eimer? And he said, I have no idea.
I said, well, you write letters to Ron, don't you? I'm sorry, I'm not familiar with this person. I said, all right, well, let me show you Exhibit A.
And I show a copy, of course, to opposing counsel, and I show a copy to the court. Take a look at Exhibit A, if you would. Do you recognize your signature at the bottom of that letter?
Yes, I do. Is that your signature? Yes, it is.
Okay, and Ron Eimer is the person to whom this was addressed, is he not? Yes, and it says Ron Eimer Esquires. He's a lawyer, is he not?
Yeah, and beneath that, it says McGuire Woods and Battle, which was the name of the firm at the time. That's a law firm, is it not? Yes, it is.
So you were ready to Mr. Eimer to get the opportunity to testify, weren't you? And of course, you're getting well-paid for your time this afternoon, are you not? So your advertising really paid off pretty well, didn't Mr. Plaintiff's lawyer?
You know, I can be an SOB when I need to be. So think about that. Doesn't mean you never advertise, or you shouldn't.
Maybe you have to, but be careful because you're creating potential cross-examination equipment and believe me, I won't hesitate to use it if I think it's going to help my client prevail in the case. Also, be careful if you testify too much, as I indicated earlier, you undercut your credibility. Even if there isn't any rule that says you're out if you don't have an active clinical practice, as there is in Virginia, if I can portray you as somebody who testifies for a living, doesn't really take care of patients, then I have severely harmed your credibility because the jury wants to hear, almost always.
They want to hear from docs who actually care for folks who are sick or who are injured, not from people who don't do that for a living. It's too easy for opposing counsel to paint you as incredible, not worthy of belief. Also be careful of organizations that group experts together.
There are companies in the business, there are companies that will advertise to lawyers and say, look, we've got a whole stable of experts in every subject from A to Z, and they really do. They've got from anthropology to zoology or whatever. You need an expert in whatever field, we can help you out.
And they can't. And I won't mind admitting that at times I have relied upon organizations such as that, but be careful because if you get in bed with those guys, you'll have a contract with them. The contract will likely be discoverable.
Contract may very well have language in it that people like me will be able to use to hit you over the head on cost of examination. Think about proof sources. They're important.
You know, it's not an obvious thing. And I had to try a few cases before I began to understand really how important these paper trails may be. So, you know, think about these negatives as well as the positives.
I'm not trying to talk you out of doing this in the least. I've had some, I'm deeply grateful, and I mean that with the most profound sincerity to experts who helped me out and helped me get a doctor's chestnuts out of the fire in a way that was convincing to the court, convincing to the jury more important. And I'm indebted to those folks and I would help them any way I could.
And on the other hand, if you testify against me, I'm going to try and crush you if I possibly can. You may crush me, but that's the name of the game.
John
I do have two or three other little questions before I let you go. One is, you know, people always ask, okay, well, how much am I going to have to do with that massive chart review? How much am I going to have to do for prep and writing report?
And then, oh, do I have to, you know, go to a deposition, prepare for deposition? And what about how often will I end up in court? What's your experience been with that?
Joe
The amount of reading and preparation is largely a function of the complexity of the case and the scope of the medical record. If the chart is comparatively skinny and the facts are simple, well, frankly, there's a pretty good chance of mine I go to court, but if it does, then your prep will be comparatively painless. Now, you will have to spend time with the lawyer that hired you.
That's important. He needs to understand how you're going to answer a particular question, and you need to understand the rules of the road, and the lawyer's job is to acquaint you with them. The lawyer is not there to tell you to answer a certain question a certain way, but the lawyer can try to anticipate what some of the questions will be and can discuss with you various ways to handle them. In the end, it's your opinion, not the lawyer's.
You're the expert, not the lawyer, so you have to answer it as you see fit, but the lawyer can point out that, I don't know, if I look at my wall over there, there are probably six or eight adjectives I could use to describe its color, none of which would be incorrect or untrue, but one might provide in the mind of the listener a different image, maybe a better image, than choice number six, perhaps, and there's nothing wrong with discussing those possibilities.
As far as depositions, that's a matter of state law. All of this stuff is governed by, nearly all of it, is governed by state law. Some states do not make provision for depositions, and it's a matter of choice.
It's a matter of grace and agreement between the lawyers, but you can't force a deposition of the opposing expert in some states. In other states, you can. It's a matter of right.
You get to do it. You can count on the deposition taking probably a good two, three hours and another one or two before that for prep time. Remember, that's all billable.
You get to bill for all of it. I take the position that the prep time, you bill to the lawyer that hired you. The deposition time, you bill to the other lawyer because he's the one who determines how long that deposition goes.
Now, some depositions are endless. I mean, I've had them go for two days, but that's rare. That's unusual.
I've had them be 35 minutes. That's equally rare and unusual, but a couple of three hours, maybe four, that's not unusual. That's fairly typical.
Trial work, you may be on the stand for a relatively short period of time. Often, that's not the case. We'll get to that in a second.
What you may not realize, though, is you have to be available on call. The lawyer does not control the pace of the trial, at least not completely. The judge has the most control over that.
The judge is going to be sensitive to when the jury needs to get up and get a bite to eat or to go to the john or whatever it might be. Things happen. You've got a game plan before the trial.
You have six witnesses. You want to call them in this order. You think you're going to need an hour for this one, 30 minutes for that one, two hours for that one, and so on.
You make all those plans, but while the planning is a good idea, very often you can't stick with that plan. You think that you're going to call your expert at roughly two o'clock on the second day of trial. Well, you can tell him that and he can plan around it, but it might not be until the third day of trial, or it might be 10 o'clock that morning, or it might be some other time.
For a practicing clinician running an office or a hospital practice too, for that matter, that's really difficult to deal with. Yet, the lawyer needs you to have that kind of flexibility because he just doesn't have control over the point in time at which you're going to be needed. When he needs you, he needs you.
No joke. If you're somehow unable to put an expert on, chances are you lose that case. It's very, very difficult to prevail without your expert.
When you sign up, recognize that you're making a commitment and it may be very inconvenient to you. If that's not acceptable, I fully understand and respect that, but don't sign up. Now, discuss it, of course, with a hiring lawyer.
There are circumstances when the degree of control is a little better than I've suggested, and maybe it won't be so difficult. But do realize that trials are unpredictable animals, and things happen at a rate, at a pace that you may not be able to predict.
John
The other sort of short question I have is what's the demand like now, and is it related more to specialty and expertise, or is there an ongoing demand, or is the demand already kind of flooded with expert witness? What's that about?
Joe
Well, this is the United States, and it's 2024. We live in the litigation capital of the known universe, and our enthusiasm for litigation, we as Americans, does not seem to have abated at all during the course of my career. If anything, it may have increased.
And the national pastime is not baseball. The national pastime is litigation. Now, of the physicians out there, and what are they?
A million doctors, maybe, in the whole United States? There's a certain number of them, a fairly high fraction. You want nothing to do with any of this.
They flat will turn you down. And that's their right. They have every right to refuse.
There's no duty to do this. And that means that your pool to choose from is narrow. Of those willing to testify, there are some that I wouldn't hire because it's too easy for them to be cross-examined.
Of those that I am willing to hire, it could be that my number one draft choice is going to be on vacation on the day of trial. And so I'm out of luck. I can't use that guy.
And so for a whole variety of reasons, the chances are good, I would think, that the demand will be there. And there is a market for these services. If it is of interest to you, and you don't want to advertise, you can quietly over lunch or a game of golf or whatever floats your boat, mention it to Dr. So-and-so. Or maybe mention it to, if you happen to know a guy working for, a person working for a malpractice insurance company, who after all will be the ones to pay your freight at the end of the day. Say, you know, I'm curious about this. Tell me about it.
And you don't put anything in writing because that's too easy to find. But a little conversation like that could pave the way to opportunities. So you want to be discreet about it.
And I wouldn't go beating the drum, but let the word get out in subtle and not too obvious manner. And you might get some opportunities. You might find that you really like it.
Then again, you might hate it. So go to school on whatever opportunities you do get and judge whether to keep up with this sort of thing based on your initial experiences.
John
I do have one more question. And this is a tangent that we kind of discussed a little bit during a prep meeting that we did a while back. And it was this idea that as a physician, I get really frustrated.
I'm tired of people telling me what to do. And, you know, the heck with it. I'm going to go to law school and somehow take this out on somebody else.
What's your advice? Or have you heard that comment before? I have heard that comment before.
Joe
I get phone, not every day by any means, but I get from time to time, I get a phone call from Dr. So-and-so from out of the blue, somebody I've never heard of, probably will never speak to again. But somehow, he got hold of my name. And he says, tell me about law school.
Tell me about being a lawyer and all that. And I've developed, I'd like to think, a fairly accurate set of antennae for telling whether the inquiry results from a sincere curiosity about how you combine these fields and whether it would be of interest versus the kind of physician you just described, John, who's thoroughly hacked off because some person somewhere who doesn't have anywhere near his credentials or his training or his knowledge or his experience or the pressure or the responsibility of caring for a patient has just told him, well, no, we're not going to provide prior authorization for whatever it is you want to do.
Well, I understand why you would be very angry about that. If I were subjected to that, I'd be furious. And I don't mind admitting that, however, is not, repeat not, a reason to go to law school.
Law school is a three-year investment. Nowadays, you're looking well at six figures. It's a time when, yes, you can work part-time as I did, but you're not going to be able to earn the fees that you could in full-time practice in medicine.
And, you know, it's not as hard as medical school, in my opinion, but it's not a walk in the park either. There's a lot of reading to do. Some of it is fairly difficult sledding.
Some of the professors you'll like, and frankly, if your experience is anything like mine, some of them you won't. And, of course, you'll be in there with a bunch of young leper snappers, quite possibly. Now, not so much as years ago, but still, you'll be older than most, probably.
Those factors may not necessarily be to your liking, or maybe they will be, but it is a major commitment. It's not just something you decide to do on the odd Thursday for no particular reason. So, if you're angry about the way medicine is being practiced, I understand that.
React to it in some way that makes sense, but don't, on that basis and that basis alone, go to law school. One of the reasons, one of many, that I went to law school, quite honestly, is that I saw a lawsuit wreck the life, and I'm not exaggerating here, I think that's not an exaggeration, wreck the life of a young doctor who was a year ahead of me in training, a fellow that I truly looked up to, a fellow I consciously tried to emulate, because I thought he's the ideal resident by the time this happened, he was a fellow.
I'd like to be just like Dick. And something happened, and he got sued, and he just wasn't the same person. And frankly, I don't think his patients got, at least for a length of time, got quite the same service that they did before.
And I thought, this is wrong. Somebody ought to do something about that. But this was after having thought about it for, I don't know, however long it is from seventh grade to senior residency, a long time, on and off, and weighing many variables and asking people about it, talking to people who are in the field, etc.
You don't do it on the spur of the moment. You don't do it because you're ticked off, however justified your anger may be. You do it because you want to be a lawyer and practice law.
Otherwise, don't bother.
John
I tell you, looking back though, it does sound very interesting. I'm way past that hill. But anyway, okay, so last thing, how do we get a hold of you?
Joe
The best bet, frankly, is to either call me or send me an email, and we'll set up a time to chat. The firm's name is Christian and Barton, B-A-R-T-O-N. And if you Google McMenamin, Christian and Barton, you won't have any trouble.
You might not have any trouble with Joseph P. McMenamin. There aren't that many of us, even in Ireland, and it's still an unusual name.
John
And I'm more than happy to talk to you. All right, well, with that, I want to thank you so much for spending this more than half an hour here today talking about this very interesting topic. So, Joe, with that, I guess it's time to say goodbye.
Joe
Well, thanks very much for the opportunity, John. I enjoyed it, and I hope it's of interest to your audience.
John
You know, one thing that we forgot to mention, so I will throw it here at the end, is that we're going to be seeing you at the Summit, which is going to be in place, is going to be going on within a week or two of the release of this. So, I think my listeners know, because I've mentioned it in other podcasts, but Joe's going to be speaking on a different area of his expertise, having to do with the structure of corporations and starting a small business, those kinds of things. And that'll be running the 16th through the 18th of April of this year in the second annual Summit.
And, boy, we really look forward to hearing from you there, Joe. That'll be fantastic. Thank you, John.
Looking forward to it myself. All right. Bye-bye.
Bye now.
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