How an Expert Witness Should Talk to Attorneys

An expert witness should communicate with attorneys candidly, objectively and, whenever possible, by phone or video rather than in writing. Your job in that first conversation is to explain what the record shows so the attorney can decide whether to proceed, settle or drop the case. You are not there to match anyone's expectations. This guide covers how to prepare, how to deliver an unfavorable opinion, how to handle pushback, and how to read an affidavit before you sign it.

Key takeaways

The purpose of the conversation is to help the attorney decide whether to proceed, settle or drop the case. Explain findings objectively and never tailor them to expectations.
Prepare a short private outline of key events, deviations, harm and uncertainties. Keep it for yourself unless the attorney asks for it.
Written expert-attorney communications may be discoverable in several jurisdictions, so many attorneys prefer phone or video. Write every email as if it could be read aloud in court.
If your honest review finds no deviation that caused harm, say so directly and without apology. Identifying weak cases early saves everyone time and money.
Log every communication, and bill conferences in itemized entries.
Read every word of an affidavit. Never sign language you would not defend under oath.

What is the goal of the first conversation with an attorney?

After you finish your record review, you discuss your findings so the attorney understands your conclusions. In Inside the Expert Witness World, Michael Kalivar frames this as a conversation that should be candid, focused and professional. The attorney is deciding what to do next, and a decision built on a flattering opinion is a bad decision.

If you have not yet read the record carefully, start with our guide to medical record review for expert witnesses. For the bigger picture of the role, see what a medical expert witness does.

How should you prepare before you call?

Have your notes and chronology in front of you. If there is no formal report yet, write a brief private outline covering:

Key events and turning points.
Any deviations from the standard of care, or the lack of them.
Whether a deviation contributed to harm.
Uncertainties and limits in the data.

This outline is for you. Do not send it unless the attorney requests it and you have confirmed it is appropriate to do so.

Should you use phone, video or email?

Many attorneys prefer phone or video calls. In several jurisdictions, written communications between expert and attorney may be discoverable, while a phone discussion is not part of the discoverable written record. Rules vary, so ask the attorney how they want to proceed.

Whatever the medium, keep your own notes factual and neutral.

If you must use email

Treat every email as if it could be read aloud in court. Avoid conclusory or colorful language such as "clearly negligent" or "this case is weak." State what the record shows instead. For example: "Documentation suggests a delay of approximately six hours before antibiotics were initiated."

Before you send any written summary, confirm with the attorney whether attorney work-product privilege applies in that jurisdiction. When in doubt, be discreet.

Instead of	Write
"Clearly negligent care"	"Documentation suggests a delay of approximately six hours before antibiotics were initiated."
"This case is weak"	Raise it by phone, then document the call in your log

How do you deliver an unfavorable opinion?

In most cases, an honest review finds that care met the standard or that causation cannot be established. Say that plainly. The book offers a model sentence:

"After reviewing the complete record, I do not see a deviation from the standard of care that caused harm to the patient."

Do not apologize, and do not soften the message to protect the attorney's investment in the case. Identifying a weak case early saves time and money for the attorney and the client. It also earns respect, and in the author's experience it leads to repeat work.

If your conclusion is that the care was within the standard, you are not failing the attorney. You are doing the job you were asked to do.

What if the attorney pushes back?

Listen. The attorney may know facts you do not, and new information deserves a fair look. If the new information changes your analysis, say so. If it does not, stand firm. You are not a member of the litigation team.

If the attorney insists on a position you cannot support, withdraw politely. One option from the book:

"I don't believe I can provide an opinion that supports your theory in good faith. It's best if you seek another expert in this area."

A calm, respectful exit protects your reputation and keeps the door open for future cases.

How should you document your communications?

Keep a log of when and how you communicated. An example entry: "October 5, 2025 – 45-min phone discussion with Attorney J. Smith re: Case #24-056. Reviewed standard of care for postoperative bleeding."

Some further rules:

Do not record calls unless both sides agree in writing.
Never discuss case details with colleagues.
Never put opinions in hospital email or the EMR, even if de-identified.
Keep case work on private, secure storage.

How do you close the conversation?

Before you hang up, confirm four things:

Whether a formal report is requested, and its deadline.
Whether more records or depositions are coming.
How future communication will happen.
What you are being asked to do next.

Then write a short log entry while the call is fresh.

How should you bill for attorney conferences?

Conferences are billable. Itemize each one with the date and duration, the nature of the call (preliminary findings, update, or report planning), and the medium. Bill in minimum increments, typically 15 minutes, and state your conference rate in your agreement.

Track short calls cumulatively so they do not slip through. Send itemized invoices rather than lump sums. A time-tracking app can make this easy. For more on setting up the relationship, including retainers, see how to become a medical expert witness.

What should you check before signing an expert witness affidavit?

Some jurisdictions require a signed affidavit or sworn statement before a malpractice complaint is filed. It affirms that a qualified expert believes there is reasonable cause for the claim. Attorneys often draft it for you. Read every word.

Check the following:

Scope of review. Does it list the records, date range and materials you actually reviewed?
Your opinions. Does it reflect your opinion on standard of care and causation, and no more?
Level of certainty. Does it use the certainty you intended, such as "within reasonable medical probability"?

Never sign language you would not defend under oath, or language beyond your expertise. Ask to revise strong phrases such as "gross negligence," "reckless disregard" or "intentional misconduct." Those are legal conclusions, and they are not yours to make.

Ask for an editable version so you can mark changes. Keep the final signed copy and your approval correspondence.

Frequently asked questions

Are an expert witness's communications with the attorney discoverable?

It depends on the jurisdiction. According to the book, in several jurisdictions written communications between expert and attorney may be discoverable, which is why many attorneys prefer calls. Ask the attorney how privilege and work product apply where the case is filed, and write every email as if it could be read aloud.

What do I say if the honest answer is that there was no malpractice?

Say it directly and without apology. A statement such as "I do not see a deviation from the standard of care that caused harm to the patient" is clear and professional. Early candor helps the attorney decide what to do and builds your reputation.

Can I record phone calls with an attorney?

The book advises against recording calls unless both sides agree in writing. Keep a written log of the date, duration and subject of each call instead.

What if I disagree with wording in an affidavit?

Ask for changes. You can request an editable version and revise phrases that overstate your opinion, especially terms like "gross negligence" or "reckless disregard." Keep the final signed copy and your correspondence about the edits.

Go deeper

The book has a full chapter on this topic, with more example phrasing for hard conversations. To get started, read the free first chapter of Inside the Expert Witness World. The preface, introduction and Chapter 1 are free by email, and the full book is available on Amazon. As Michael Kalivar puts it, "Your credibility begins not in the courtroom, but in the first conversation."

If you would like a low-effort way to get a feel for medical-legal work and start earning, see how Kalivar works for physicians. Experts review brief, anonymized case summaries in their own specialty, on their own schedule, with no medical records to review at this stage. An opinion form takes about 10 to 20 minutes, and experts are paid for the opinions attorneys reward. Attorneys see only anonymized credentials. Your identity is shared only if you accept an introduction after declaring no conflict of interest, you can decline any introduction, and an introduction can lead to retained expert witness work.

This article is educational and is not legal advice. Physicians should use their own professional judgment and consult legal counsel as needed.