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Uncomfortable Questions Medical Expert Witnesses May Be Asked During a Deposition or Testimony

Updated: Jun 24

Many physicians asked to participate in medical expert witness work are scared of being grilled during a deposition or testimony. While only a small percentage of expert witness cases go to deposition or testimony, if they do, it’s very important that you prepare yourself for the types of questions that may be asked by the opposing counsel. The attorney or firm hiring you will typically prepare you by providing you tips for deposition or providing testimony, but even so, there are a few questions that members of our physician communities are routinely caught off guard by. This article will go over common types of questions asked to expert witnesses in an attempt to make them either uncomfortable or to challenge their testimony in order to make their opinions less credible to the jury.  


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Uncomfortable questions you may be asked during a testimony or deposition as a physician expert witness

How often do medical expert witnesses have to undergo a deposition or give testimony at a trial?


There’s not a one size fits all answer to this question, as fundamentally this will depend on your case mix and the type of expert witness work you tend to do. Certain types of cases are more likely to go to trial than others, whereas others never make it past the chart review phase. As your reputation in this space grows, you may find yourself being recruited for more high profile cases that are more likely to progress through the system without settling beforehand.


One thing is certain for almost everyone engaging in this work - the likelihood of a deposition is much higher than going to trial and being put on the stand in front of a jury. A very small percentage (usually <10%) of civil cases go to trial, as most are dismissed or settled before that.


When setting your medical expert witness fee schedule, make sure to charge more for deposition and testimony, as these are much more involved and require more preparation as well as inconvenience to your schedule, often requiring you to take time off from your job as a doctor.




How do I prepare for a deposition or to provide testimony on the stand?


The firm or attorney retaining you will typically prepare you for trial and give you general tips for trial. The extent of preparation will likely depend on how high stakes your role in the trial is and what they perceive the opposing counsel will likely ask you. It could range from just giving you some general tips to actually running a mock session with you. If you’ve never done this type of work before, also consider reviewing the tips from physicians in our community on how to prepare for a deposition.


Tips to help physician expert witnesses prepare for a deposition


What are particularly difficult, challenging, or uncomfortable questions I may be asked as a medical expert witness giving a deposition or testimony?


There are several categories of questions that opposing lawyers tend to ask to try and discredit your testimony or expert opinions. These include: 



Questions about your credentials, qualifications, or experience


The first thing the opposing counsel is going to do is review your CV and your expertise and try to pick holes in it. They’ll start with the obvious questions such as if you’re board certified in your specialty, what fellowships or special areas of training or research that you have, and how many years of experience that you have treating patients or as a subject matter expert in the area that you’re testifying in. Examples of questions they may ask include:


  • Questions about your training program and how much exposure to the specific condition being discussed you received

  • Questions about articles you’ve published in this space (or lack thereof)

  • How many patients with similar profiles you have personally seen in the past year (or other time frame)

  • If procedural, how many of the procedures in question you have personally performed

  • How much time you spend practicing medicine versus doing other things like expert witness work

  • If you’ve ever failed a licensing exam, not gotten into med school or residency, or had professional issues where your credentials or licensing have been called into question

  • Malpractice history from your own practice

  • Medical board reports or complaints

  • Restricted hospital privileges

  • Any criminal history or publicly available records of misconduct or discipline 

  • If you’ve ever been discredited as an expert witness, dismissed from a case, or made a mistake in your testimonials


You’ll want to make sure that you and your counsel have reviewed your CV in detail for any potential things that you may be asked to explain further or that may be used to discredit you, and be prepared to answer related questions.



Questions about contradictions or inconsistencies in the testimonial or deposition when compared to past work or statements


Especially in today’s day and age, where internet research is so easy, be prepared for the opposing counsel to have done their research on you to find ways to discredit you or make you look like a hypocrite. This could include:


  • Prior statements you’ve made in media or even on social media

  • Available transcripts of prior expert witness work that you’ve done where you may have made a statement contradictory to what you’re currently stating

  • Publications that you’ve been an author or presenter on where there was information to the contrary of your testimonial



Questions about what you’re being paid to serve as an expert witness to try to show that you are financially motivated to answer in your client’s best interest


This is a favorite of the opposing counsel to try and prove bias or paint you as a greedy physician that’s just trying to make money off of expert witness work. The more expert witness work you do, the more likely they are to harp on this. Particular questions they may ask include:


  • How much are you being paid to be here today?

  • How much money have you made on this case in particular already (including case review, preparation, retainer, etc?)

  • How much money do you make every year doing expert witness work?

  • What percentage of your annual income comes from expert witness work?

  • Do you make more from your expert witness work than you make clinically as a physician?

  • Would you still be here today if you weren’t getting paid?

  • Have you ever made a statement in a testimony or deposition that went against the person or party who was paying you?

  • Do you pay anything to advertise your medical expert services, or are you signed up for expert witness databases to get more of this work?


It’s very important to be able to answer these questions honestly, and not look as though you’re embarrassed about the answer. Your expertise is your expertise and you are entitled to get paid appropriately. You’ll want exact numbers as they can ask for invoices or billing statements (sometimes in advance of the case), so make sure you’re consistent.


Questions about other bias you may have that discredit you as an expert witness


The opposing counsel may also look for other sources of potential bias based on the information that they find about you.


  • If you only testify on behalf of doctors (this is why most experienced expert witnesses cannot stick to just testifying on the side of the doctor, as it would look like they would never say anything against a physician)

  • Organizations you belong to or represent, including advisory board seats, advocacy groups, etc.



Questions about your methodology or the way that you came up with the conclusions you did about the case


This is likely the most intuitive thing that people think they will be asked by the opposing side, but the way in which it’s asked can still be jarring. The answers to some of these questions are obvious, but may make the jury second guess you, so they’ll likely be asked. These include things like:


  • Did you actually see the patient or are you just going off what others have said or documented?

  • Is it possible that the question you were asked caused you to hone in on this one thing without looking at the entirety of the case?

  • Did you review every single thing in the patient’s medical record or only the paperwork that was provided to you?

  • Did you speak to the patient or the doctors involved in this case?

  • Are there publications or other peer reviewed work that support your conclusion? What are they? When were they published? Are those authors credible? Did you know ‘x’ about the author you’re citing?

  • Are there any other potential explanations for the issue at hand that you aren’t mentioning? 

  • Is it possible that while your conclusions may be the reason, there may be other reasons why ‘x’ happened to the patient or other potential diagnoses?

  • Is it possible this outcome would have happened regardless?

  • Is there any way this outcome could have been prevented if the doctor had done anything differently?

  • Are you just saying this because hindsight is 20/20 or would you have predicted this prospectively? What degree of certainty do you have?

  • Do you agree that other doctors might have come to a different conclusion when reviewing these records?



What can you do to prepare yourself for the uncomfortable questions or attacks you may face as an expert witness?


Unfortunately, this is part of the job when you’re asked to testify or give a deposition. You have to be thick skinned and confident that you are giving the best possible analysis of the situation based on the information that you’ve been given. They will try and shake you, and it’s up to you to stay calm, not answer questions that you haven’t been asked, and not allow them to lead you down a pathway that’s irrelevant to the question at hand. 


Things that you can do ahead of time to prevent you from getting caught off guard include:

  • Preparing with the attorney or firm that is hiring you

  • Going over your CV and publications with a fine tooth comb

  • Googling yourself to see about anything they may bring up (and make sure you can stand by everything on your social media accounts)

  • Reviewing your billing records and tax returns so that you can answer compensation questions confidently and definitively (without being embarrassed or defensive)

  • Only answer questions in your field of expertise - don’t speculate and don’t be afraid to say something is beyond the scope of the question you were asked to testify on

  • Prepare yourself mentally to stay calm, cool, and collected no matter what they ask



Conclusion


Expert witness work can be a very rewarding (and yes, lucrative) side gig, but it’s not easy work, especially if asked to give a deposition or to testify in court in front of a jury. The opposing counsel will do everything they can to discredit your testimony, paint you as a biased witness, or indicate that you are a hired gun or greedy, rich doctor. Preparing yourself mentally as well as with numbers to answer hard questions about your personal and professional life, as well as your financial compensation, will help you to stay calm when it feels like someone is attacking you. Make sure you heed the advice given to you by peers as well as the attorney or firm hiring you, and think ahead of time about things that can be used against you so that you have a response in mind.



Related expert witness resources for physicians


Learn more:


If you would like to be alerted of expert witness opportunities matching your interests, make sure you’ve signed up for our expert witness side gig matching database (you must be a member of our free physician only Physician Side Gigs group to access, but it’s completely free to join). Also make sure you sign up for our PSG weekly newsletter, where we publish current and upcoming job and side gig opportunities.


If you’re a lawyer looking for a medical expert witness, contact us.

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