As a Medical Examiner, most of my work that ends up in court involves criminal cases. I generally try to avoid civil suits, such as malpractice or wrongful death suits, for a number of reasons. The first is that I’m not particularly interested in them. The second is that they are horrible time-sinks. It’s funny, you can get someone on trial in a criminal case and unless they are OJ Simpson or Paris Hilton, it will not be the million-dollar extravaganza everybody thinks. Mostly, it seems, its because there are limits on how much money lawyer can make on these things if the state is paying for it. You get a civil case where money is involved, and all bets are off. There is no limit to the expense. This seems to be even more clear in federal court where lawyers fees are much better protected than plaintiff’s awards — a jury may award a plaintiff a symbolic victory of $1, but by law that means that the loser has to pay *all* the lawyers fees. Occasionally I’ll do a consult on a private civil suit, and as I get older the lure of the money involved becomes strong. Mike Baden stated on the stand that he got $110,000 for his work on the Spector trial. I’ve never charged more than $15,000, and that was for a complex case, but it is what it is.
Unfortunately, occasionally the cases I do for my “real” work end up in civil court and I can’t avoid getting involved. I like these the least, not only because I don’t get any personal remuneration for them, but because they are such huge time sinks. It seems that lawyers can just think up random things they want and we experts are obligated to do whatever they want. In this case, for instance, one of the lawyers involved tried to get my deposition thrown out via a Daubert challenge in federal court. A Daubert challenge basically says that my testimony should not be allowed because it does not have a scientific basis. It was a pleading whose charges against me had double digits of pages, most of which were simply factual inaccuracies.
The problem was not the pages of accusations. In fact, those were so out of touch with reality it was trivial to answer them. The factual issues had plenty of documentation and the scientific issues were straightforward. The problem was that I was obligated to respond to all of them — which meant writing and referencing a medium double-digit response. Reviewing the literature (again) took about ten hours, writing took about five hours, and typing the bibliography took about two hours. So, that’s 17 hours of hard work spent dealing with rather vicious accusations that were so sloppily written and trivially factually incorrect that it read like something counsel must have dictated while driving. Of course, there’s no down side for the lawyer to do that — even with an error-riddled pleading such as the one directed against me. It’s all billable hours and money in the pocket.
Could I have refused? I suppose, in a strict sense, I could have, and just let my testimony be declared unscientific and have the courts declare me a charlatan. However, that’s not a real option for me if I ever want to testify in court again. The next time I’m in court, I don’t want counsel to ask me “Is it not true, Doctor, that your testimony was tossed out of court as being speculative and unscientific, and that the court declared you had not maintained the minimal quality standards of your profession?” The answer to that question should not be “yes” if you can avoid it.
A couple of decades ago one of the great criticisms of medical care was that there was no downside for physicians to order extra tests, do unnecessary procedures, etc., since they all generated income. Thus, the “better safe than sorry” philosophy of doing the million-dollar workup on everybody also meant that everybody made lots of money. In medicine, those days are over.
Apparently they are not over in the lawyer business. It’s unfortunate that some of the cost-containment measures implemented in the medical field have not been implemented in the legal one. Lawyers should not pad their pockets with slipshod make work, particularly make work that forces other people to labor at their whim.