Could You Be an Expert Witness?

Could You Be an Expert Witness?

By Mike Rubin Mar 28, 2017

According to Salary.com, the median pay for paramedics as of September 2016 was $39,400 annually, or $18.94 an hour—discouraging, especially when one considers half of us earn less than that.

Cheer up; there's a way to make 10 times that hourly amount by applying knowledge you already have while assuming a position of comfort in a climate-controlled environment without needles or knives, gurneys or guns, disease or disaster.

You're Witness

If you watch prime-time courtroom dramas like Law & Order, you're probably familiar with the term expert witness—the scholarly, imperturbable person who sits on the stand and deftly handles how-and-why questions from prosecutors and defense attorneys. We often see physicians portrayed in that role, but paramedics also serve as expert witnesses—nice work if you can get it. Rates are typically $100–$300 an hour, including time spent preparing for a case, testifying and even traveling to and from the courthouse.

Pretrial preparation is the part you don't usually see on TV. It's not for everyone: lots of reading, and you really do have to be an expert in your field—not just someone who rides for a living. But if you have the right experience, credentials and disposition, being an expert witness can help establish you as an EMS guru while significantly adding to your income.

How does one get started in such a lucrative, career-enhancing sideline?

Luck + Curiosity = Opportunity

Paramedic and RN Scott DeBoer was finishing his master's degree when he secured his first expert-witness assignment.

"My school was having a career day," the 48-year-old educator and clinician recalls. "A nurse who was a recent graduate told us about her job as a legal consultant—basically a full-time expert witness. She invited anyone interested to forward their CV.

"Well, I didn't even know what a CV was at first, but I figured it out and sent her mine. She called me back almost immediately and asked if I wanted to do a case. I told her, 'Sure,' even though I didn't know what I was getting into."

DeBoer's case involved alleged medical malpractice, or med-mal, in a hospital's intensive-care unit. After giving his first-ever deposition for the plaintiff (the side filing the accusation), DeBoer was convinced he'd made a bad decision.

"I was blown away by how well the attorneys on both sides knew medicine and how organized they were," he says. "There was a stack of documentation several feet high, and they would ask me things like, 'Mr. DeBoer, how do you explain the conflict between what you just said and page 362, line 4 of such-and-such?' It was just an unfathomable amount of information to digest. I went home and told my wife I'd screwed up and was never going to do this again.

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"Two days later I got a call from the attorney saying, 'Hey, you were pretty good. How about doing another one?'"

Paramedic Paul Werfel, an experienced expert witness, says he got his first case when he was asked to fill in for a colleague. "He wasn't able to do it, so he recommended me to the lawyers he was working with. When they called me about taking the case, I said, 'Sure.'

"Once you've testified in court, it becomes part of the public record," Werfel says. "If another attorney needs a witness in your area of expertise, they can find you online and contact you. There are also clearinghouses law firms use to source experts. I've gotten work through a couple of those agencies."

Maintaining a steady flow of cases has more to do with talent than luck, though. And it's not conventional paramedic skills attorneys are looking for.

More Than a Prehospital Skill Set

Wes Ogilvie, an Austin, Tex., attorney and paramedic, says prerequisites for expert witnesses vary.

"If I have a case involving a dispatcher in New York City, I'll need an expert with different qualifications than for a failed resuscitation in Arizona. I'm going to look for someone with experience specific to the area we're litigating."

In general, though, Ogilvie says communication skills are most important. "If they're going to be testifying on the witness stand, I want someone who's comfortable speaking to juries and both counsels; someone who won't get flustered."

Ogilvie estimates that fewer than 10% of his fellow paramedics would make good expert witnesses. "I say that for two reasons,” he says. “First, I need people who are truly knowledgeable. Second, I need people who can explain those concepts to a jury without making the members of the jury feel stupid. If experts can't do those two things, they're not much good to me and might actually hurt my case."

Werfel recommends a mixture of professional polish and street experience. "People who teach, who speak at conferences or are published are often ideal for this, but I also think it depends on whether they have experience in busy, metro-area EMS and how recent that experience is.

"I tell the attorneys I work with, 'Find out when the other side's expert last saw a patient.' If they've been sitting behind a desk for five or 10 years and don't still get out into the field, that can hurt their credibility."

DeBoer adds you have to look the part. "You can have all the degrees in the world and be super smart, but if you have purple hair and 18 piercings, you probably won't be hired."

What's Involved

Say you get called for your first expert witness gig. What should you expect?

"Often you're going to be asked if there's even a case worth pursuing," says Ogilvie. "Someone whose aunt died goes to an attorney and says she thinks the paramedics did something wrong; that lawyer is going to hire an expert to review the details and give an opinion."

Werfel says discretion is critical at that point. "An attorney is offering you a significant amount of money to say something that's important to their side, but you have to believe in the case. If you don't, you'll be embarrassed in court and look silly. Nobody wants to look silly.

"You have to have the integrity to say, 'I don't agree with you, I can't do this one.'"

If you and the attorney feel the matter is worth pursuing, you'll be asked for a deposition—a sworn statement containing your answers to questions asked by opposing counsel.

"During the deposition the lawyer on your side can't help you," says DeBoer. "They can object and say, 'Don't answer that,' but they can't tell you what to say.

"In court you can only testify about what's in your deposition. Even though you know what material will be covered, it can still be nerve-wracking when you realize opposing counsel has pretty much memorized your statements and can challenge you about whatever you said.

"The outcome has a lot to do with which side is better prepared."

If you have questions once you get started, DeBoer suggests communicating with law firms by telephone.

"Everything written down is discoverable," DeBoer says of the process that gives both parties access to all relevant documentation. "That's a big deal. Anything you write—an e-mail to an attorney, for example—the other side has access to."

Adding Value to your Expertise

According to Werfel, splitting time between plaintiff and defense work can enhance an expert witness's reputation.

"That's important because when a firm hires you, they'll know you call it like you see it," says the 41-year EMS veteran. "I've worked against other experts who've handled, say, 100 cases in four years, all on the side of the plaintiff. The jury starts to see them as hired guns.

"All kinds of opportunities open up when you're considered unbiased. For example, I've testified against certain EMS agencies, then been hired to help defend them in other matters. I've also worked as an expert for the same attorneys who've cross-examined me on earlier cases. It's an interesting arrangement."

Ogilvie encourages prospective expert witnesses to specialize in some underserved EMS niche. "Develop an area of expertise you know more about than almost anyone. Be the go-to guy for RSI, for example.

"In the back of our state bar's monthly magazine, there are work-wanted ads for expert witnesses. I saw one ex-cop who's positioning himself as a specialist in reconstructing car wrecks."

What you shouldn't do is pretend you're an expert when you're not, adds DeBoer.

"When you first hear about a case, if it feels like something you can work with, great. If it's going to be a stretch, don't do it. Don't take an OB case if you average one delivery every few years, for example.

"In some states you have to qualify as an expert. It's not enough to say, 'I'm your trauma guy because I handled the great train wreck of 1948.' You have to show you spend at least 51% of your time doing whatever you claim to be expert in."

Conclusion

Being an expert witness isn't for everyone, but paramedics with the right communication skills, clinical experience and administrative know-how can turn a part-time venture into a significant chunk of income.

Mike Rubin is a paramedic in Nashville and a member of EMS World's editorial advisory board. Contact him at mgr22@prodigy.net.

 

 

 

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