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Sidebar - The First Expert Call | Building an Ethical, Efficient Medical-Legal Collaboration · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Statute Text Episode.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:26
  SPEAKER_00: Three weeks after the first call, the attorney discovers that the medical expert has been reviewing the case under the wrong assignment.
• 0:33
  SPEAKER_00: The attorney expected an opinion on standard of care and causation.
• 0:38
  SPEAKER_00: The expert thought she was being asked only to explain a procedure.
• 0:42
  SPEAKER_00: The deadline is now close.
• 0:44
  SPEAKER_00: A critical scan was never sent, and everyone is trying to reconstruct what was actually agreed on.
• 0:51
  SPEAKER_00: That kind of problem rarely begins with bad intent.
• 0:55
  SPEAKER_00: It usually begins with a first call that sounded efficient but left too much unsaid.
• 1:00
  SPEAKER_00: My view is simple.
• 1:02
  SPEAKER_00: The first expert call is not a sales call, and it's not a preview of the opinion.
• 1:07
  SPEAKER_00: First and foremost, it's to see if the expert is the right fit for your case.
• 1:11
  SPEAKER_00: Beyond that, it is a boundary setting exercise.
• 1:15
  SPEAKER_00: If that part is unclear, better records and more time may not fully repair the collaboration.
• 1:21
  SPEAKER_00: Today, we will look at how to prepare for that conversation, how to present a case without steering the medical analysis, and how to recognize when an assignment needs to be narrowed, paused, or declined.
• 1:32
  SPEAKER_00: This is general educational information.
• 1:35
  SPEAKER_00: Engagement requirements, privilege, disclosure rules, compensation practice, expert qualifications all vary by jurisdiction and professional settings, so confirm the details that apply to your matter with qualified counsel and applicable professional guidance.
• 1:51
  SPEAKER_00: Before anyone discusses whether the case is strong, ask a more basic question.
• 1:56
  SPEAKER_00: What role is this person being asked to perform?
• 2:00
  SPEAKER_00: A treating clinician is caring for a patient.
• 2:02
  SPEAKER_00: A consulting expert may help the legal team understand the medicine, identify weaknesses, or determine what records are still needed.
• 2:10
  SPEAKER_00: A testifying expert may later provide opinions that must withstand disclosure, deposition, and cross-examination.
• 2:18
  SPEAKER_00: And an educator may explain a condition or procedure without applying that explanation to a disputed event.
• 2:24
  SPEAKER_00: Those roles can sometimes overlap, but they should never blend by accident.
• 2:29
  SPEAKER_00: The purpose of the work affects the information exchanged, the documentation created, and the expectations about disclosure.
• 2:37
  SPEAKER_00: A useful opening might be: at this stage, we are asking for a preliminary consultation to help us understand the medical issues.
• 2:45
  SPEAKER_00: We are not asking you to reach a final opinion today.
• 2:48
  SPEAKER_00: That sentence gives the expert permission to think carefully instead of producing instant certainty.
• 2:54
  SPEAKER_00: Then, match the assignment to the expert's actual qualifications.
• 2:58
  SPEAKER_00: A long resume is not the same thing as a fit for a particular clinical question.
• 3:03
  SPEAKER_00: The useful question is not, does this person have an impressive credential or credentials?
• 3:10
  SPEAKER_00: It is, can this person responsibly evaluate this issue from their training, experience, and current knowledge?
• 3:19
  SPEAKER_00: A physician may be well qualified to discuss a procedure, but not rehabilitation or long-term prognosis.
• 3:25
  SPEAKER_00: A nurse, she might provide important insight into monitoring and nursing care without offering an opinion about a surgical standard.
• 3:32
  SPEAKER_00: This is also when conflicts and independence should be discussed before substantive analysis begins.
• 3:39
  SPEAKER_00: Has the expert treated anyone involved?
• 3:42
  SPEAKER_00: Worked with a connected facility or organization, maintained a personal, financial, professional, or academic relationship that could affect the work or appear to affect it.
• 3:51
  SPEAKER_00: A conflict does not always end in engagement, but an undisclosed conflict can damage it later.
• 3:58
  SPEAKER_00: Compensation deserves the same transparency.
• 4:02
  SPEAKER_00: Clarify rates, minimums, travel, cancellation terms, administrative time, and payment procedures.
• 4:09
  SPEAKER_00: Compensation pays for professional time and expertise, not for a particular conclusion.
• 4:15
  SPEAKER_00: Confidentiality also needs plain language.
• 4:18
  SPEAKER_00: Do not assume that every communication has the same protection or that sending records to an expert automatically creates privilege.
• 4:26
  SPEAKER_00: The legal team should explain the intended purpose of the consultation and follow the rules that apply.
• 4:33
  SPEAKER_00: They should also educate the expert on any weird, specific jurisdictional rules that the expert might not be aware of, or that are outside the norm, such as all written communications are subject to discovery.
• 4:45
  SPEAKER_00: The expert should ask how records will be transmitted, stored, returned, or destroyed, and who may access them.
• 4:52
  SPEAKER_00: If the work could later involve testimony, disclosure expectations may change.
• 4:58
  SPEAKER_00: When the answer is uncertain, pause and obtain guidance instead of relying on an informal assumption.
• 5:05
  SPEAKER_00: Now, imagine the attorney begins the case summary this way.
• 5:09
  SPEAKER_00: The surgeon clearly missed the problem, and we need you to explain why.
• 5:13
  SPEAKER_00: It may feel efficient.
• 5:14
  SPEAKER_00: The theory is already assembled, and the expert can supposedly fill in the medical details, but that language asks for agreement before the records have been independently assessed.
• 5:24
  SPEAKER_00: A more disciplined version would be the patient underwent a procedure on this date, developed these documented symptoms, received this follow-up care, and now alleges that the care fell below the applicable standard and caused these injuries.
• 5:37
  SPEAKER_00: We would like your independent assessment of the relevant clinical questions.
• 5:41
  SPEAKER_00: That version gives context without announcing the answer.
• 5:45
  SPEAKER_00: Then the attorney can ask the expert, what would you need to see before you could responsibly evaluate this?
• 5:52
  SPEAKER_00: That question tells you more than asking whether the case is strong.
• 5:55
  SPEAKER_00: Some attorneys hear this and think, if I give the expert every weakness, I am doing the other side's work.
• 6:02
  SPEAKER_00: But hiding a weakness does not protect the case.
• 6:05
  SPEAKER_00: It only postpones the moment when that weakness appears, often after time and money have already been spent.
• 6:11
  SPEAKER_00: The better approach is to identify the clinical questions without deciding the answers in advance.
• 6:16
  SPEAKER_00: Is the issue standard of care, causation, informed consent, damages, chronology, or more than one of those?
• 6:24
  SPEAKER_00: Are different questions going to require different specialists?
• 6:27
  SPEAKER_00: Records are where that discipline becomes visible.
• 6:30
  SPEAKER_00: Suppose the file contains the operative report and three follow-up notes, but not the postoperative imaging that first showed the complication.
• 6:39
  SPEAKER_00: The expert may be able to discuss what happened clinically, but not whether the timing supports causation.
• 6:46
  SPEAKER_00: That is not a minor missing attachment.
• 6:48
  SPEAKER_00: It changes the question.
• 6:50
  SPEAKER_00: Provide an organized chronology when possible, but make clear that it is an organizational tool, not a substitute for the underlying records.
• 7:00
  SPEAKER_00: Identify what has been supplied and what is missing.
• 7:04
  SPEAKER_00: Perhaps the imaging, medication history, pathology, or relevant prior care.
• 7:09
  SPEAKER_00: Then ask what additional material could change the analysis.
• 7:13
  SPEAKER_00: An expert who knows the limits of the record can explain the limits of the opinion.
• 7:18
  SPEAKER_00: An expert who does not know what is missing may sound more certain than the evidence allows.
• 7:24
  SPEAKER_00: Of course, it's also the expert's job to tell the attorney if there are records missing.
• 7:28
  SPEAKER_00: So this may not be the biggest concern, but it is always helpful to have known information up front.
• 7:35
  SPEAKER_00: Especially if you know you're waiting on certain records to still come in or something like that.
• 7:39
  SPEAKER_00: The other thing with records, an expert may not be aware of, is discovery rules that may prohibit some records from being accessed or assessed.
• 7:49
  SPEAKER_00: And this should be discussed up front if it pertains to your case.
• 7:53
  SPEAKER_00: An expert should always report any records that they notice are missing to the attorney.
• 7:59
  SPEAKER_00: The attorney may not know they are missing.
• 8:02
  SPEAKER_00: The expert should be able to say, I can assess the documented clinical decision making, but I cannot offer an opinion about future earning capacity.
• 8:12
  SPEAKER_00: Or I can address the nursing care, but I cannot independently determine the surgical standard.
• 8:17
  SPEAKER_00: Those are not signs of an unhelpful expert, they are signs of a professional judgment.
• 8:23
  SPEAKER_00: A narrower opinion with a solid foundation is usually more useful than a sweeping opinion that reaches beyond the person's expertise.
• 8:31
  SPEAKER_00: Once the substance is clear, make the working relationship equally clear.
• 8:36
  SPEAKER_00: Who is the primary contact?
• 8:39
  SPEAKER_00: Should questions move through email, a secure platform, or scheduled calls?
• 8:43
  SPEAKER_00: What response time is realistic?
• 8:46
  SPEAKER_00: What is the next deliverable?
• 8:48
  SPEAKER_00: A record review, an issue list, a preliminary assessment, or a recommendation for another specialist?
• 8:55
  SPEAKER_00: Litigation deadlines matter.
• 8:57
  SPEAKER_00: But clinical schedules matter too.
• 9:00
  SPEAKER_00: A realistic plan is better than an urgent promise that no one can meet.
• 9:05
  SPEAKER_00: Put the agreement in writing afterward.
• 9:07
  SPEAKER_00: Not because every conversation needs to become complicated, but because memory is not a reliable project management system.
• 9:15
  SPEAKER_00: Document the role, the questions, the records supplied, the records still needed, the deadlines, and what is outside the assignment.
• 9:24
  SPEAKER_00: Also decide what happens if new information changes the picture.
• 9:28
  SPEAKER_00: Who approves an expanded assignment?
• 9:31
  SPEAKER_00: What happens if the expert cannot support the initial theory?
• 9:34
  SPEAKER_00: The answer must include the possibility of narrowing, pausing, or ending the work.
• 9:39
  SPEAKER_00: A perfect example of this is an expert who took a call and the attorney decided to pivot their case angle.
• 9:45
  SPEAKER_00: This required the expert to re-review the records with the new case angle and the new theory in mind.
• 9:51
  SPEAKER_00: I don't know if this was discussed on the phone call or not.
• 9:54
  SPEAKER_00: I wasn't part of the phone call, but the expert did not get a subsequent retainer, didn't talk to the attorney about additional billing of hours, and amassed another eight or ten hour invoice without telling anyone until they submitted their hours.
• 10:07
  SPEAKER_00: They're still trying to get paid on that invoice years later because the attorney wasn't aware this was going to happen, was taken off guard by the invoice, and probably wasn't very happy about it.
• 10:16
  SPEAKER_00: No one wins in this scenario.
• 10:18
  SPEAKER_00: The expert worked hours they can't get paid for, the attorney's unhappy with a bill they're surprised with.
• 10:23
  SPEAKER_00: Communication up front is essential.
• 10:27
  SPEAKER_00: Now, the possibility of narrowing, pausing, or ending work can make the first call uncomfortable.
• 10:33
  SPEAKER_00: The purpose of hiring an expert is not to guarantee agreement, it is to obtain disciplined medical analysis that helps the legal team understand what the evidence can and cannot establish.
• 10:45
  SPEAKER_00: If the expert identifies a missing record, an alternative explanation, or a question outside of the assignment, that is useful information, even when it complicates the theory.
• 10:56
  SPEAKER_00: The attorney needs to know about it.
• 10:58
  SPEAKER_00: Watch for pressure to advocate instead of analyze, certainty before the relevant records have been reviewed, reluctance to disclosure limitations, or a request to omit unfavorable facts.
• 11:10
  SPEAKER_00: On the legal side, an unclear scope, an incomplete record set, an unrealistic deadline, or an expectation that the expert will fill gaps with assumptions should prompt a pause.
• 11:22
  SPEAKER_00: These warning signs do not always require an immediate end, but they do require correction before the work proceeds.
• 11:29
  SPEAKER_00: A useful course correction might sound like this.
• 11:32
  SPEAKER_00: Let's separate the documented facts from our working theory and make sure you have the materials needed for an independent assessment.
• 11:39
  SPEAKER_00: The clinician might respond, Well, I need to narrow the assignment to the issues within my expertise, and I need additional records before offering an opinion.
• 11:48
  SPEAKER_00: If that conversation is met with respect, the collaboration may become stronger.
• 11:53
  SPEAKER_00: If it is met with pressure or concealment, declining the assignment may be the responsible choice.
• 12:00
  SPEAKER_00: Professional courtesy should never require professional compromise.
• 12:05
  SPEAKER_00: So before the next first call, write down five things: the role, the clinical questions, the records, the boundaries, and the next decision point.
• 12:18
  SPEAKER_00: Ask what the expert can evaluate, what the expert cannot evaluate, and what new information could change the analysis.
• 12:26
  SPEAKER_00: Agree on communication, deliverables, deadlines, and the process for expanding or narrowing the work.
• 12:33
  SPEAKER_00: You do not need a perfect opinion at the end of that conversation.
• 12:37
  SPEAKER_00: You need a shared understanding of what happens next.
• 12:40
  SPEAKER_00: And that three-week surprise from the beginning, it's often preventable.
• 12:46
  SPEAKER_00: Not because every first call produces agreement, but because the roles, questions, records, and limits were made visible before anyone started defending a theory.
• 12:55
  SPEAKER_00: Clarity at the beginning is not administrative overhead.
• 12:59
  SPEAKER_00: In complex medical legal work, it is essential.
• 13:03
  SPEAKER_00: Before your next call, take a moment to make the role, the questions, the records, the boundaries, and the next decision point visible.
• 13:18
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at National Expert Academy.com.
• 13:25
  SPEAKER_00: I'm Tracy Libertarian.
• 13:27
  SPEAKER_00: I'll see you on the next episode.