by Judy Melinek, M.D.
As a forensic pathologist, I’m often asked by attorneys how they can find a qualified expert in my field. Here are the questions I tell them they should ask:
1. Is the pathologist certified by the American Board of Pathology?
This is the most important qualification for an expert witness in the field of pathology. Just because a consultant claims to be “board-certified” does not mean he or she really is. The American Board of Pathology is the only board recognized by the American College of Graduate Medical Education (ACGME) as offering certification in forensic pathology. Anything else may be a diploma mill, and anyone claiming to be board-certified from one should be off your list. Be aware too, that building a slick website or appearing on television does not make you an instant expert. Job descriptions such as “forensic pathologist assistant” or “death investigator” are not equivalent qualifications. If someone is claiming the title “professor,” check directly with the institution to make sure they really are on faculty.
2. Where was the pathologist educated and trained?
Look at the expert’s resume. Have you heard of the universities on it? You might want to check with them to confirm that the doctor did actually graduate with the degrees listed. It is also important to look at where they did their fellowship training: the most prestigious forensic fellowship programs are either in large cities or part of a centralized state-run medical examiner office. Keep in mind, however, that highly reputed programs can undergo seismic changes in the wake of malfeasance, or even in the wake of the longtime chief’s retirement—so it couldn’t hurt to google the name of the training program along with the search term “scandal.”
3. Do they come recommended?
Ask the expert for lawyers they have worked with recently. That lawyer can tell you if the expert was readily available, reasonably priced, easy to work with, and comprehensible. The lawyer can also tell you whether jurors understood the expert’s testimony, since we pathologists generally don’t get direct feedback from the people we are hired to educate.
4. Are they currently practicing forensic pathology—or are they a “professional expert”?
Many doctors who practice forensic pathology full time at a county coroner or medical examiner office also do some consulting as expert witnesses on the side. Others work part-time or do per-diem work. However, there are also a number of forensic pathologists who have retired or left the practice of medicine completely, and who work as full-time legal consultants. Some of these consultants have been forced to leave civil service after ethical violations. Some have a national reputation but only take high-profile cases. A few even market themselves as hired guns willing to tailor the science to suit the client.
Keep in mind when considering one of these “professional experts” that opposing counsel is going to ask the question, “When was the last time you performed an autopsy?” If the answer is “Tuesday,” fine. If the answer is “1997,” then your opponent may be able to make the case that your expert is out of touch with the current standards of medical practice in an everyday county morgue.
5. What is their bedside manner?
Many doctors enter my field of medicine because they are more comfortable with dead people than those still living. Although all forensic pathologists are required to testify in legal cases, not all of us are comfortable on the stand. Don’t assume every forensic pathologist who works as an expert witness is necessarily good at communicating complex medical issues to the lay public. When you are on the phone with the expert, ask yourself if they are understandable. Do they use med-speak or do they explain the medical terminology to you as they talk? If you don’t understand what your expert is saying, then the jury won’t either.
6. What is their area of expertise?
Not every forensic pathologist has the same specialized knowledge. A doctor performing autopsies in a land-locked state may not know much about scuba accidents. A suburban forensic pathologist may investigate hundreds of car accidents, but not a lot of multiple gunshot wound homicides. Try to match the needs of your case to the experience of your expert. If it is a rare or unusual type of death, try to find an expert who has published on the subject.
7. Do they have experience testifying in cases such as yours?
Most pathologists who practice in a city or county coroner’s office are very good at testifying in criminal cases, since they get a lot of on-the-job experience at the behest of the local prosecutor. But if you’re looking for an expert in a defense case, make sure your expert has experience and understands your needs. Keep in mind too, that few practicing forensic pathologists have experience testifying in civil matters as a routine part of their job. The questions you need them to answer may be beyond their experience and training. Make sure you grill a prospective expert about the specific underlying medical evidence in your case—not just about the cause and manner of death.
8. What is their expectation of their role?
Some pathologists see their role as very limited: you send them materials, they write a report. Others will be more accommodating in offering you additional support by looking up references and articles, educating you and your staff about the specific science at issue, and helping you formulate probing questions for deposition or trial. If you ask up front, the individual expert will usually tell you what you can expect from them.
9. Do they teach?
The most successful experts understand the complexity of their subject matter and can find a way to make the subject accessible to a lay person. The average juror is going to get lost unless your expert can communicate the science in an effective way.
Does the pathologist have teaching awards? Do they teach groups other than doctors? If they do, then this is a pretty good indicator that they are comfortable with public speaking and can adjust their language appropriately for the audience.
Finding the right expert for your needs is a balancing act, and it requires you to be upfront with your expert about costs and expectations. The expert should have plenty of experience with similar cases to give you an estimate of how much time it takes him or her to review materials or to research and write reports. Bear in mind both your needs and each candidate’s offerings.
As a final question, ask yourself this: Would I want this person as my doctor? Would I want this doctor doing my autopsy?
Then go have a nice cup of tea and be happy the question is hypothetical.
Dr. Judy Melinek is a forensic pathologist who performs autopsies for the Alameda County Sheriff Coroner’s office in California. Her New York Times Bestselling memoir, “Working Stiff: Two Years, 262 Bodies, and the Making of a Medical Examiner,” co-authored with her husband, writer T.J. Mitchell, is now out in paperback. She is also the CEO of Pathology Expert, Inc.