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Payouts for medical malpractice claims remain lower in Oregon than in all but seven other states, despite the loss of a cap on damage awards in 1999. What is interesting is that Oregon also does not have standards for expert witnesses to testify.

As reported in the The Oregonian:

The findings come from one of the first studies that attempts to gauge the effects of various malpractice reforms that states have adopted, mostly to cut costs…Expert witness standards made the most difference in number and size of payouts.Some states require expert witnesses to practice or to have training in the type of medicine under scrutiny in the lawsuit. These laws had about three times to four times the effect of caps on damage awards, researchers concluded.

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Some expert witnesses believe that their professionalism is affected if they make it known that they are available to be retained as an expert witness. For example, many fear embarrassment or a loss of credibility when it is revealed on cross-examination that they market their services.

In reality, the judge and jury just don’t care about your marketing. On cross-examination, attorneys will not risk alienating a jury by delving deeply into your marketing, and judges frown upon such a line of questioning. Good cross-examination is short and hits hard. Attorneys are going to concentrate on two things in their limited amount of time to cross-examine an expert witness: the fact that you are a paid witness, and any inconsistencies in your prior testimony. Even these issues can be quickly defused on direct examination. You, of course, can point out that you are paid for your time, and not for your testimony. Lawyers are simply not going to gain ground with a jury by pointing out that you make your services available to the legal community through marketing.

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Fourth District Judge Samuel McVey will allow the prosecution to use an endocrinology expert witness to explain the female body in a case involving sexual abuse.

Dr. Larry Andrew is on trial for allegedly inappropriately touching patients during infertility treatments. The defendant has said he massaged the patients genitals to relive pain. The prosecution has argued that the defendant did this soley for sexual gratification.

As reported in the Utah Daily Herald:

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The Idaho Supreme Court reversed the district court and allowed neurosurgery expert witness Dr. Edward Smith to testify in a case involving a woman who fell into a coma after receiving an infusion of chemicals through a catheter instead of an intravenous line due to a nursing error. Weeks vs. Eastern Idaho Health Services.

The Idaho Supreme Court, in an opinion written by Chief Justice Gerald Schroeder, noted that Dr. Smith was a neurosurgeon of considerable experience. He therefore qualified as an expert witness, the court decided.

As reported in Legal Newsline:

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Prior to Daubert v. Merrell Dow Pharmaceuticals, the courts allowed scientists to play gatekeeper by deciding what was good science–permissible in the courtroom–and what wasn’t. However, in 1993, the Supreme Court ruled in Daubert that judges and not scientists should not be the ultimate arbiters of the quality of science.

Many argue that since Daubert, respected expert witnesses (especially chemistry experts, pharmaceutical experts, toxicolgy experts, and other scientists) have seen their legitimacy questioned, even rejected, by judges who may know very little about the subject. Critics of Daubert argue that some plaintiffs, especially those in toxic tort cases, might find it harder to win their case against large corporations without having scientists who can testify on their behalf.
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This first myth is only true if you, as an expert witness, do not want to get retained. Out of sight is out of mind and, for the expert witness, out of work. Being an expert witness necessarily means that you market yourself. When the attorney hires an expert, he or she is doing so on a promise. The attorney cannot see a potentially effective trial presentation. The attorney searches for what he can see now. That attorney wants to know if you are available, and seeks information about your qualifications, experience, and abilities. Thus, expert witness marketing is everything a professional does on a regular basis in the process to educate and demonstrate to the legal community why that expert should be retained. The key words are everything and regular.

Two very good reasons why you should market your services:

1) Legal professionals cannot hire you if they don’t know about you.
2) Your competitors are marketing.
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The New York Press Republican reported that expert witness testimony was allowed from a handwriting expert regarding disguised writing samples:

A prosecution expert witness testified Thursday that accused murderer Edward Dashnaw tried to disguise his handwriting in samples given to police. Dashnaw is charged with the December 2005 stabbing deaths of David and Lorraine Donivan of Schuyler Falls.

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The Northeastern Pennsylvania Times Leader reported that a federal court will allow an immigration expert witness to testify in case involving the Hazelton Pennsylvania Illegal Immigration Relief Act.

As stated in the news report:

The trial, which begins on Monday, will determine the constitutionality of the city’s Illegal Immigration Relief Act, which seeks to punish landlords and employers who knowingly rent to or hire illegal immigrants.

The city was issued a win in pretrial motions on Sunday when [Judge] Munley ordered that the city can have an expert witness – Jan Ting, a professor of law at Temple University’s Beasley School of Law – testify in the trial.

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“Honesty is the best policy” is a cliche, but it is the most important element in the attorney-consultant relationship. It is much better to reveal a shortcoming to retaining counsel than to try to bury the facts. With the variety of online tools available, even the most casual of legal researchers can unearth information about an expert witness’ background, qualifications, and expertise.

There was a story about an expert who was retained on a high profile case. The attorney had given the expert witness the usual admonition about disclosing any potentially damaging information to the attorney before the depositoin. The expert said that there was nothing to hide.

At the expert’s deposition, the opposing counsel started with the usual background questions. When the attorney asked the expert a series of seemingly innocuous questions about about the expert’s addresses, the expert froze. Much to the dismay of the retaining attorney, the expert stopped the deposition. Once outside the conference room, the expert said to retaining counsel, “I didn’t tell you. My previous address was San Quenton jail.”
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The story of the ballistics expert who killed himself after being confronted with evidence that he had lied about his credentials illustrates the importance of researching experts before they are retained.

Licensing information can be found online and is easily searched to verify the currently-held licenses claimed by an expert. Many organizations, such as the American Board of Surgery, have their own websites where one can check the licenses of experts. Search Systems links to over 35,000 public record databases. By running a search for the type of record (license), the jurisdiction (e.g.: Ohio), and the occupation (e.g.: accountant), the user is given a list of databases where the licensing information can be found. Using the metasite Portico , one can verify licenses for occupations such as doctors, contractors, architects and more.