Civil and Criminal Case Involvement Dealing With Attorneys

PAUL G. STIMSON CURTIS A. MERTZ

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Dentistry is often involved in both civil and criminal cases. In this chapter the authors, drawing on years of experience, hope to give some helpful tips and guidelines to assist in the decision or evaluation of cases. Remember that unless you are a party to the action (having been named in a lawsuit or subpoenaed) you do not have to be involved in any case. Should you be forced by court action to enter a legal action, you obviously will be a hostile witness. Most attorneys, unless there is no other option, prefer to work with other than hostile witnesses. When an inquiry comes requesting assistance in any case from an attorney, law enforcement agencies, district attorneys, public defenders, etc. you must determine what type of case it is. What particular skill, technique, experience, or educational knowledge do you possess that will help in the matter at hand? What dental, medical, or other situations are they asking your assistance in? What are they trying to prove or disprove? Before you get too involved, you should pause and consider your own situation. If this is a local case, or one that will be emphasized in the media, will this harm your reputation and practice or business? If you are in a profession, will this involvement cause any problems with your patients? If this is your rst time, are you ready for the rigors of a deposition or courtroom appearance? Will this individual allow only an opinion in the case with no further obligation? Do you have the training and expertise to properly critique what was done, or should have been done, in this case? Do you consider that the procedure or treatment rendered is beneath the standard of care? An often-quoted maxim is scientists seek the truth attorneys seek an answer. As the problems in litigation become more complex and difcult to understand by the average juror, the use of expert witnesses is increasing. When you are qualied and experienced in the forensic sciences or any related eld for any length of time, you may be used in the capacity of an expert

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witness. If the particular job or skill you possess is a critical one that is in the limelight of cases being prosecuted, your skills and knowledge will be in great demand. Deoxyribonucleotide (DNA) technology cases were being tried in the courts and little was understood by the average person about them or their use. After the exposure on national television as a portion of the evidence in the O. J. Simpson trial, DNA technology was brought to world attention. Many individuals now have a rudimentary understanding and some expectations about scientic evidence. The movies or television often portray the forensic expert as a shining knight on a white horse with all the correct answers. Many forensic members will recall Jack Klugman, the actor who portrayed Quincy on a television drama of the same name. At an American Academy of Forensic Sciences meeting in Los Angeles Klugman thanked the Academy for giving him a great role to play. He also stated that the eld of forensics was almost unknown to him before the role and that he was now deeply immersed in it. He said he was sorry that we have to add to the actual facts of the case to make the shows interesting and exciting. The teledrama was based on actual cases, embellished to keep the interest and excitement at a high pitch until the nal scene, where forensic science would triumph. The public expects that you, as a forensic expert, have this magic formula and every case is perfect and easy to solve. Nothing could be further from the truth. Always present the evidence and conclusions based on facts. Do not deviate from this basic set of truths, nor allow your attorney to misapply them to make a better case. You are the only one with a total grasp of the particular piece of evidence; you have studied it and know the signicance, or lack of signicance of it. Should you be guilty of anything less that the truth, this is considered unethical behavior and possibly perjury. The possibility of tampering with the evidence by Ofcer Furman in the O. J. Simpson case was one factor that might have convinced the jury to mistrust the forensic evidence. Dentists, physicians, and other health care providers talk about the standard of care. When it is below the expected or what is considered the usual standard or degree of care as outlined in the literature and taught in professional schools, attorneys term this malpractice. They lodge civil suits against physicians, dentists, and other health care practitioners to a greater degree now than in the past. Not all of them are malpractice. Many are overcharging situations, treatment misunderstandings, etc. At least one in ten professional people today have had some action contemplated against them. You cannot just give an opinion and consider that your involvement is complete, unless this is all that you have agreed to do in the situation. You will be expected ultimately to write a report, become very familiar with the current literature in the particular area of concern, and ultimately give a deposition or testify

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in a trial. These activities all take time. You must know how much your ofce overhead is to decide how much of a fee per hour to charge. In our experience, getting a retainer of at least two hours of your agreed-upon fee is one way to prevent any misunderstandings about the case. This is done before you do any analysis or effort on the case. Keep track of the time involved with the case. The easiest way to keep time is in six-minute fractions, making it tenths of an hour. When you have almost exhausted the retainer fee time, or have studied the situation sufciently to make some decisions and recommendations, call the attorney or agency with whom you are involved. It is your task to quickly educate them in the area you are considered to be an expert. Then outline the strong and weak points of the situation studied. The entire case and your opinions are condential. Should anyone ask you about the situation in any way they must be referred to the individual or agency that has hired you. Even if they are law enforcement individuals, you cannot divulge any information without permission. In medicine and dentistry we have the doctor-patient privilege. This situation is the attorneyclient privilege. You are not a client, but as a member of the team you are under a condentiality requirement. Some situations, if not pursued by the attorney and client, could be very harmful to the individual against whom the proposed action was contemplated. You could, with a few ill-chosen words, nd yourself involved in an ethics situation. Make it a rule to discuss the case you are working on with the attorney of record only. Occasionally the attorney who has asked for your opinion has only a vague idea that there may be a cause of action. Frequently, an attorney will seek recommendations in a case due to extreme pressure from one or more members of a family. Many reviewed cases never get past the initial analysis stage. A well-known malpractice attorney has stated that the ratio is about 1 in 10 to 15 cases reviewed. Often after the review they take a series of depositions and then arbitration between the two groups of attorneys leads to a nancial settlement. This is another reason for the condentiality issue. Each state has rules of professional conduct or a code of professional responsibility that govern the actions and ethical obligations of attorneys (Moenssens, A. A. et al. Scientic Evidence in Civil and Criminal Cases, Foundation Press, Westbury, New York, fourth ed., 1995, p. 92). In Section 1.25 of this text, the authors explain the ethical consideration of both the attorney and the expert witness. They explain that it is professional misconduct for an attorney to knowingly use an expert discovered to be a fraud. They also admonish attorneys about fabricating evidence or helping a witness to testify falsely. Attorneys must not promise a fee contingent on the outcome of the case, nor share fees with the expert (p.93). In Section 1.26 of the text they state that courts are developing rules and laws against expert witnesses who are negligent in their professional behavior. Codes of conduct for physicians,

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dentists, attorneys, and other forensic and forensically related groups exist. An example is the American Board of Forensic Odontologys Bylaws Code of Ethics and Conduct. In the language of the street, if you are going to walk the walk and talk the talk of an expert witness, it must be professional, ethical, truthful and nonbiased. It is a sad comment that they burden the ethics committees of many of our professional organizations with cases in which they forgot this simple statement. One area that constantly generates problems is that of fees. How much is an adequate fee to charge? If you are in private industry or practice, the case and the efforts put in it will take away from your productive and private time. The crucial point is that time must be devoted to these efforts. What do you earn per hour at whatever you do? How much is your overhead and expenses to earn that amount? If you do not charge enough to cover your overhead, you are losing money by being involved in the case. How much to charge was a recent lively debate covering approximately six weeks on the Harvard Internet. The interchange produced some things that are appropriate. Charge whatever you feel is adequate and you can obtain. The charges stated ranged from $65 per hour for a beginner to $1000 for a neurosurgeon. Try to explore what the fees for similar work are in your area. Always make sure that they cover your other fees, travel expenses and other incidentals (photography costs, artwork, etc.). This can be covered in an employment agreement such as the one found at the end of this chapter. This agreement is one for general guidance, and is nothing more than a mere suggestion for your use (work agreement). Some are concerned with the statement that an individual is worth what they charge. As an individual gains a reputation from an outstanding job, his or her name is networked to other attorneys. Attorneys also, in this electronic age, have the means to nd who the experts(s) are in cases similar to the one in which they are involved. Advertising your services in some journals circulated to attorney groups is permissible. They will ask you the question, Do you advertise? Advertising in this country is big business. If you can justify your answer, feel free to advertise. Pick a strategy that works for you and follow it. We strongly recommend that you seek the aid of competent counsel to develop your own expert witnesses agreement. This document should prevent any misunderstandings between the two parties, and helps in obtaining any tardy payments due. If the agreement is not accepted by the attorney to whom it is directed, a tremendous saving of time and effort will be realized. It is useful in fee collection situations. The document prevents misunderstandings between parties when used. Whoever is opposing you and your attorney(s) will be as well, or perhaps even better, prepared than you are. An attorney is hiring you as the expert and will expect you to act like one. These are not things that one can procrastinate on, and then in a day or two quickly

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ll in the blanks and be ready to go. If one area of forensic, medical, or dental science is all that an individual does, then the library and reprint material must be organized and easily available. For most individuals, a library and literature search concerning the question must be done. This will take time and effort. The attorney and client cannot be charged for your effort to become current and more knowledgeable in the area in question. To be an expert witness you should create a curriculum vitae (CV) or a professional resume to send to interested parties. This document is one of many that will be shared with both sets of attorneys. You should be candid, honest, and have this document represent you in a straightforward manner. It should reect your education, training, and experience. The document will be used to assess and assail you by opposing counsel. Keep it to the point and limit placement of items in it to those that are easy to prove and show. Some individuals like to put every lecture or seminar they have ever attended in their documents. We caution you about doing this, as this may lead to a line of questions by an attorney that may be frustrating or embarrassing, attempting to disprove or discredit your credentials to a court or judge. The more information you have, the broader the area from which questions can be asked. Do not be surprised if the attorney asks you for a listing of cases of involvement, a biographical sketch, and your CV. When you work for and with attorneys, leading and penetrating questions are their stock and trade. They are well trained in the process of asking questions to nd weak or questionable areas. Even if these areas are not in your documents they may still ask you about them. A good rm of attorneys has a group of excellent and well-trained investigators who can nd out amazing facts about individuals and share them with the rm. If you have anything in your past that could be possibly harmful to your use as an expert witness, you should share it with the attorney contacting you, prior to any agreement. What kind of things are we talking about? Have you ever led for bankruptcy? Have you been involved in messy divorce or breakup of a partnership? Have you been a party in a malpractice suit? Have you had a chemical dependency problem in the past? Anything that has involved a court or legal procedure, either federal or state, is a matter of public record and can be obtained and used by competent counsel. Attorneys loathe being caught off guard and when they are, and if it concerns you, the attorney-expert witness relationship just may have become adversarial. If the attorney who asks you to review the case is hesitant about sending a retainer (of at least two hours fee charge) you should be hesitant about taking the case. Our common practice is to put off an answer to the calling party until we can check the calendar to see if we have enough time to be involved. During a 24-hour or more delay, a credit check should be done on the individual attorney or rm. If you feel that this is going to be a very

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involved and prolonged case, you might also get a Dun and Bradstreet rating on the rm. If you have your own attorney, he or she can also supply helpful information on the individual or rm concerned. The attorney who calls you for service has obviously done some checking on you. You should also evaluate him. If the individual or rm has a poor credit history, you might submit an estimate and ask for what you think the fee time will cost in advance. One excuse for nonpayment by attorneys is that the client has exhausted his funds. This is unfortunate, but the client did not hire you, the attorney did. When working with attorneys, stay in contact with them. We prefer that the case be discussed in person or on the telephone. Certain states and jurisdictions have regulations that we must make anything written available to both sides. Consequently, written communications must be shared, even if they are preliminary. Other states have rules about what they term work products, which are reports that are in the process of being developed. They can share the nished product, but the work product is a privileged document. When communicating with the attorney, talk about the strong and weak points of the action. Do not allow the attorney to sway your judgment concerning the case. Be aware that the only one who is sworn to tell the truth and can suffer problems with perjury is the expert witness when testifying under an oath. This applies to a court of law or in a deposition. No one else in the courtroom or at a deposition is under that obligation. Because of this, remain the true scientist and tell it like it is. Your attorney can skillfully have you emphasize the areas that she or he wants, but the expert for the other side will have the opposing attorney ready to underscore the weak points or problem areas in the case. If you have never been part of or exposed to an actual court trial, ask your attorney to review the court docket to alert you to a trial that will have expert witness testimony in it. It will be an educational experience for you to spend time in the audience and observe a trial. Pay close attention to the mannerisms of the expert and use of the exhibits he or she is using. Watch the jurors and try to predict which exhibit was most benecial to them. Trial exhibits must be carefully planned and used. They take time, thought, planning, and acceptance by counsel who will guide the expert witness in their use. When used in court or depositions, exhibits must remain with the case and become part of the record. Having them returned is possible, but the interval may be many years. Photographic exhibits and drawings must be discussed with your attorney. The method of use and labeling varies from jurisdiction to jurisdiction. Exhibits must be professionally done and reect the quality of your presentation. First-class exhibits are expensive and must be approved by the rm or attorney in the case. Without prior approval, the exhibits that an expert witness provides for use may be at his or her expense. The individual who has hired you as an expert witness has the nal say in

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what will be taken into court or to a deposition to present his side of the case. If you feel that lack of the exhibits will not allow you to fully describe your area of expertise you should further educate the attorney as to why they are necessary. Your rst effort is to educate the attorney about your area of expertise, the second job is to make it understandable to a lay jury. Talk to the jury, not down to the jury. Use simple language that is possible for a high school graduate to understand. When asked a question in trial or in a deposition, allow the examiner to complete the question. Take a short pause before answering the question. Make sure that you understand the question. If you do not understand completely, ask for the question to be repeated or perhaps rephrased. The short pause will give your attorney time to object should he or she wish. Never anticipate what the question will be and begin to answer prior to the examiner nishing it. By anticipating a question, an attorney may trap an expert in an area that was not what the question was about. This occurred because the question was not fully asked and because the expert anticipated the question and rushed an answer. The attorney only partially asked the question, but there was a rushed answer. If you know, answer the question. If you do not know the answer, say I do not know. When an expert witness begins to guess, or feels that he or she knows related material and can fabricate an answer, that expert is in trouble. We recommend that when you are asked to give a deposition, do it in a location away from your ofce or place of employment. This puts the expert in a strange environment and makes him more attentive to the examination and examiner. In a comfortable place, such as an ofce, it is possible for an individual to say things that they may later regret. Statements such as, When he rst came in the ofce he was terribly dressed and smelled, may come back to give you trouble. In a strange environment the statement might be, When rst seen in the ofce the individual was unkempt in both clothing and personal hygiene. This does not seem like a great difference, but attorneys use words, while most people use concepts and larger ideas. You should raise an index of suspicion when you receive a telephone call asking about a case on which you happen to be working. Always refer the calling individual to the attorney of record that employed you. If the case is big enough, or there might be a large settlement, investigators will use most any trick in their repertoire to gain information. If in doubt, ask for a written request from the individual calling for information. Clear any communication with the attorney of record before giving out any information. If you are involved in a very unusual case do not discuss it with anyone except the attorney of record or his approved individuals. Remember that the individual to whom you are speaking is usually poorly equipped in the beginning to understand the technical aspects of your area of expertise. It is then very easy

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to be misquoted. It is possible that this misinformation may cause you enough embarrassment that you must withdraw from the case. The best thing to say is, I am involved in the case you are interested in, but I am not free to discuss any aspects of the circumstances at this time. When you become involved in any portion of the forensic eld, we have some practical suggestions for your consideration. You will need a reproof ling cabinet large enough to secure case records, exhibits, and other materials for each case. The cabinet or safe must have a combination lock or another means to secure it and the contents. An alarm system should further protect the area where the cabinet or safe is located. In criminal cases, having the prosecutor maintain the evidence is a better policy. Should it be lost or misplaced it becomes his or her problem and not yours. In the business of being an expert in any given eld you must contend with the chain of evidence. Anything that you receive or give to anyone else must have a signed and dated receipt. You must have a paper trail and some type of journal logged with proper entries to show the how, what, when, and where of the information or material transfer. One adage in the forensic eld is If it wasnt written, it probably was not done! A break in the paper trail means that a critical piece of evidence can, if opposed by an experienced attorney, be withheld from the case. Another concern is that of proper maintenance of evidence for months or even years. In criminal cases the le may be open forever, such as on capital murder cases, for example. Plan how, where, and what you are going to have to maintain in records, exemplars, and other types of evidence. Be very careful in sharing case photographs and other materials. They may show up in a situation you might not want or have any control over. In criminal cases the ultimate end of the case is the Supreme Court, so the case is technically active until the criminal is deceased. The last thing we will talk about is the extent to which you should share the type of forensic work you are doing with your ofce personnel, fellow investigators, family, and friends. If you are a dentist or physician let everyone in the ofce know that they can discuss nothing pertaining to any forensic case outside the ofce environment. This is the rule for patients and patient records as well. It is a good policy to limit your discussions in the ofce only to matters your staff can assist you with in the case. This is not really an ofce case, but is your case as an expert with their limited assistance. The admonition of not sharing condential information outside the ofce connes should be in the employees manual of every ofce. If you share the material with a husband, wife, or family be extremely careful. The better plan is to share only vague portions of the case so they have a general understanding of what you are doing. As we mentioned previously, investigators will go to great lengths to obtain material to use against you. A teenager talking to a very friendly person can be tricked into revealing facts that can be potentially

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very damaging to you or the case. An ex-police ofcer with 30 or more years experience can gain information from many sources in a very smooth, friendly manner. The best policy is to discuss the case with those you work with, love, and trust after it is completed.

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