If, as a personal injury attorney you are not accustomed to cross examining an independent medical examiner (IME) in court, here are a few thoughts on the matter.
Many personal injury attorneys are able to settle the majority of their cases out of court, which is the preferred method of obtaining a settlement. However, it does rob some attorneys the experience of performing in a court of law. This can be especially true when faced with cross examining an IME.
If you are a young or inexperienced trial lawyer you may feel intimidated by a defendant IME because here is an expert discussing some of the physical merits or weaknesses of your client’s medical case. Such a reaction is unnecessary and is more psychological than real. The trial lawyer’s home is the courtroom, and as such he or she has the “home court” advantage.
The cross examination is conducted using rules that favor the personal injury attorney. Your ability to utilize leading and hypothetical questions to extract important information from the IME is a distinct advantage.
What not to do when cross examining an IME
Some personal injury attorneys make the mistake of going after the IME, asking questions about how much he makes and how often he testifies in court for the insurance companies. This doesn’t help a jury decided anything about the merits of the case. Also, you likely have your own IME lined up to testify.
Preparing for an IME cross examination, deposition and trial
Nothing helps in a cross examination like exhaustive prep work. Armed with knowledge and thoughtful and thorough study about the type of information the IME is prepared to give in his testimony will give you, the plaintiff attorney, the upper hand. Being able to anticipate is a great weapon.
Know everything there is to know about what is contained in your client’s medical records. Absorb, understand and organize all of the important details, then study up on the medical literature on the pertinent topics. Talk to your experts to find out which medical texts would be best for you to research.
Next, analyze the opinions and basis for the adverse IME, which you should have in your possession, and then identify prior cases in which the IME has testified. You can do this through Lexis or WestLaw. You can also get prior depositions using www.depoconnect.com on the national level, or the AFTL or DCTLA deposition banks locally. Before deposing the IME, try to find instances where the adverse expert has taken a position opposite to the one you are advancing. Even better would be to find inconsistencies in prior testimonies or statements. In any event, this type of research will help you understand how the IME usually testifies.
As in all court cases, it is very important to control the witness. A great way to do this is by asking short, leading questions that usually garner a “yes” to a fact. This way you can elicit the key concessions the IME may not voluntarily offer.
Always pay close attention to the IME’s testimony, as it can unwittingly offer its own opportunities on cross examination.
With your acquired medical knowledge and by using the right trial tactics for cross examining the adverse IME, you should be able to direct the information obtained in court for the advantage of your client.
For a list of the types of questions you might want to consider for crossing examining a defendant IME, check out the Plaintiff Attorney Legal Information Center website
Group Matrix Blog – May 28, 2018 – by Sharon Bowles
