Legal Writing for Medical Malpractice Trial: The Expert

Catalog description

The course is designed to provide second-year students who are interested in health law litigation-or civil litigation and trial work generally-the opportunity to analyze medical expert opinions and challenge them by motion. A medical malpractice trial often becomes a "battle of the experts". If the trial is the battle, then pre-trial motion practice defines the battlefield. Students will research both the Frye standard that applies to challenges in Illinois, and the subsequent Daubert standard that applies to challenges in federal court and most state courts. Students will be provided with a closed "record" that includes a complaint, answer, selected written discovery, excerpts from depositions of treating physicians, and a full deposition of the expert to be challenged. The exact facts and opinions will need to be developed over the spring and summer but could include a dispute based on the preferred approach for a surgical procedure, the process for extracting and freezing eggs for fertility treatment, best practices for preventing falls in a nursing faculty, the use of homeopathic medicine, or off-label use of prescription medicine. The course will be mindful that most (if not all) second-year students have not taken Evidence but will include some discussion of motions to exclude expert opinions in the context of pre-trial motions in limine and pre-trial preparation. The course will culminate in a final motion to exclude using the Daubert standard and a mock hearing of that motion. Learning objectives include understanding how trial judges use Frye or Daubert to review proposed expert opinions to determine if sufficiently reliable, analyzing expert opinions and testimony, preparing oral arguments against opposing expert testimony, writing persuasively about medical opinions using case law, medical literature, evidentiary standards and policy, and gaining practical experience about the type of writing that trial lawyers do before trial. Learning objectives include understanding how trial judges use Frye or Daubert to review proposed expert opinions to determine if sufficiently reliable, analyzing expert opinions and testimony, preparing oral arguments against opposing expert testimony, writing persuasively about medical opinions using case law, medical literature, evidentiary standards, and policy, and gaining practical experience about the type of writing that trial lawyers do before trial.