There are typically three different types of testimony that will be expected of you.
Written testimony: this will come in the form of a report. At times, this is simply a record review. Other times, you will be asked to comment on causation, impairment, disability, apportionment, prognosis, future medical care, and other medical opinions. A cover letter from an attorney will clarify exactly what is intended to be answered in this report.
How to prepare for your first report.
Speak with the attorney over the phone. Ask what is expected of you—review of records, physical examination. Ask what questions they specifically hope to have answered.
Establish a fee schedule appropriate for your location and specialty. Send this fee schedule in advance and determine an appropriate retainer for the work expected. Do not start working until that retainer fee is paid.
Upon receipt of the records, go through them while recording a written summary of the records. Many people itemize and summarize each medical record individually. This depends on the type of case but is generally helpful for your own review. Your report will require a summary in order to demonstrate your understanding of the medical record. Any history, exam findings, and treatment relevant to the injury at hand are very important to note. In addition, prior history of injury to the same body parts is very important for apportionment.
An editor is very helpful in quality assurance of your first few reports. Many physicians continue to work with editors throughout their careers to ensure that the reports appropriately answer every question expected.
Oral testimony: this can be done outside of court and used as evidence as a video or transcription in the form of a deposition. These are often done via Zoom but may be requested to be in person. As these are in the middle of the day at a physician’s office, it may be acceptable to wear scrubs and a white coat, especially in a Workers Compensation case. Oral testimony can also be provided in court at the witness stand, in front of the judge, which is of course more formal.
How to prepare for your first deposition
First, it is important to establish whether the deposition is in person or on Zoom. In-person depositions should be held at a location convenient to the physician, usually at the physician’s clinical office. Payment should be required in advance. If the fee/timeline is not established by state law, I generally recommend receipt of payment 2 weeks in advance or the deposition will be cancelled. The payment should include the hourly rate for the deposition plus one hour of preparation time. A one-hour deposition should require payment for two hours of work. A three-hour deposition requires payment in advance of four hours of work. Travel time may be added if it is not a convenient location for the physician. However, many attorneys are opting for Zoom or similar meetings now. It is acceptable generally to wear scrubs and a white coat for a deposition, but depending on the
No one else is allowed in the meeting room while the deposition is taking place, so have water available. Have your notes/reports well-organized and opened on your laptop and searchable. It is helpful to search your prior reports for keywords when asked about specific portions of your report. Aim never to contradict yourself; be precise in your answers by consulting your report. Refamiliarize yourself with case law referenced in your report. Ensure that you understand the defense behind any impairment ratings that you provide. Read through the facts of the case by reviewing your report. Most depositions allow for payment for one hour of prep time. Be cognizant of the clock and do not agree to proceed beyond the agreed upon time. The deposition can be closed and re-opened at a later date with payment upfront as well as prep time. If the discussion remains involved with five minutes to the end of the meeting, alert the counsel “we have five minutes left and I have another appointment.”
Court appearance: It is very rare that a personal injury case or medical malpractice case goes to court, as only 4-5% of these cases go to trial. Workers Compensation cases are settled outside of court in California, so these will never require court appearances. Preparation for these is similar to a deposition, with increased formality. Wear professional attire (suit) to court and arrive on time. Establish in advance if you will be required to be present for a full or half day, and expect payment upfront. Travel time should also be reimbursed.
During your testimony, address the jury and explain your medical opinion much in the same way you explain this to your patients. Many of the techniques for being deposed apply here, but the judge is present to actually hear your testimony (as opposed to reading a transcript) so more nuances are evident. Since COVID-19, some court appearances are via zoom or the judge may be in a separate room even at a courthouse.