5 qualities every med-mal expert should have

In a Virginia medical malpractice case, your expert witnesses can make or break your client’s chances of success.  Whether you are defending a surgeon or representing a patient who claims harm, your experts will likely shape the jury’s understanding of the medical issues more than any other witness at trial. In medical malpractice trials, which hinge on disputed issues of the standard of care and proximate causation, the jurors’ final decision usually rests not on what the parties say, or the arguments made by the attorneys — but on which experts they believe.

Unfortunately, not all expert witnesses are created equal.  Some have strong credentials but lack presence on the stand.  Others are affable and clear but lack strong academic or professional qualifications.  Some experts crumble under pressure, while others dominate the courtroom or at their deposition.

What separates a winning expert from a merely adequate one?  In my experience trying and defending medical malpractice cases in Virginia, there are five qualities you want (and need) your expert witness to have: expert knowledge and active clinical practice; practices in Virginia; prior expert experience; credibility and likability; and  strong communication skills.

Expert knowledge and active clinical practice

Under Virginia Code § 8.01-581.20(A), an expert witness testifying on the applicable standard of care in a medical malpractice case must satisfy two mandatory requirements: (1) they must have expert knowledge of the standards of the defendant’s specialty, and what conduct conforms or fails to conform to those standards, and (2) they must have actively practiced in the same or a related field of medicine within one year of the alleged act or omission at issue.

These are commonly referred to as the “knowledge” requirement and the “active clinical practice” requirement.  Failing to establish either prong can result in your expert being excluded and your case potentially faltering.

This means that when selecting an expert, you should look for someone whose medical education, training, and current clinical practice align closely with the defendant’s.  If your case involves an orthopedic surgeon who treated a pediatric patient’s wrist fracture, your expert should be a pediatric orthopedic surgeon or an orthopedic surgeon who routinely treats pediatric wrist fractures and actively performs the same procedure at issue.

If a surgery is involved.  Virginia courts require that an expert’s field of practice and clinical activities match the defendant’s specialty in a meaningful way to meet the statute’s requirements.  This first point is a legal requirement.

Practice in Virginia

While an expert witness in a Virginia medical malpractice case does not need to practice in the commonwealth, choosing a Virginia-based expert offers legal and practical advantages that can strengthen your case.

Legally, Virginia has a statewide standard of care, requiring experts to show familiarity with standards applicable to Virginia providers.  Although this standard often aligns with national norms, Virginia law mandates proof of familiarity.

Under Virginia Code § 8.01-581.20(A), experts licensed in Virginia are presumed to know the standard of care in their specialty.  The statute also permits testimony from out-of-state experts familiar with the statewide standard, but qualifying them involves extra steps, such as obtaining a letter from the Virginia Board of Medicine and laying proper foundation during direct examination. While not overly burdensome, these added procedures can be avoided by using a Virginia-based expert, saving time and reducing potential challenges during motions in limine or voir dire.

Beyond legal considerations, a Virginia-based expert brings practical credibility that is hard to match with someone from out of state. Jurors may naturally trust a physician who speaks with a familiar regional accent and references local hospitals by name.  For example, in a Richmond case, an expert from Virginia Commonwealth University may be instantly recognizable to jurors with ties to VCU.  Similarly, a physician affiliated with the University of Virginia brings the weight of UVA’s respected statewide reputation.

Logistically, Virginia experts are easier to coordinate with for in-person prep, depositions, courtroom walkthroughs, and last-minute trial sessions. While virtual tools like Zoom help, nothing beats the effectiveness of in-person strategy, especially in high-stakes trials.

Finally, having a local expert allows you to emphasize during closing arguments that your witnesses practice medicine in Virginia, understand local healthcare realities, and care for the same patients as the defendant.  In contrast, you can point out that the opposing expert is from out of state and lacks firsthand knowledge of Virginia’s medical environment — a subtle but persuasive distinction.

Prior expert experience

Expert testimony is about far more than medical knowledge; it is also about navigating the realities of litigation.  A brilliant physician can quickly become a poor expert witness if they do not understand how trials and depositions work.  Prior experience as an expert, even in just a few cases, can make a significant difference in deposition performance and courtroom testimony.

Experts with prior testimony experience understand the flow of direct and cross-examination, how depositions work, the importance of answering only what’s asked, and how to stay composed under pressure. They are less likely to make mistakes like oversharing, hedging when clarity is needed, or contradicting themselves.

Their past work also allows you, as the attorney, to vet them thoroughly by reviewing transcripts, checking how they hold up under cross, and confirming there is nothing in their prior opinions that could be used against them.

Ideally, your expert will have experience testifying for both plaintiffs and defendants, reinforcing the perception of neutrality and fairness. While you do not want a “professional testifier” who loses credibility with the jury and is seen as a “hired gun,” you also do not want a first-time expert witness who freezes when opposing counsel becomes aggressive. Aim for the expert who has a balanced level of past experience: someone who is seasoned but not jaded, confident but not combative, and tested but not overexposed.

Credibility and likability

No matter how impressive your expert’s credentials may be, if the jury does not trust or like them, their testimony will lose impact.  Credibility and likability are two of the most important qualities in trial advocacy, especially when your case hinges on a battle of the experts.

Credibility often depends on aspects of the expert’s education and professional background, such as the medical school they attended and where they completed their residency and fellowship. You should also consider where they currently work, their professional title, whether they have published relevant medical literature on the issues in your case, and whether they teach medical students or residents.  These are just some of the key factors to keep in mind when assessing your expert’s background.

Likability in an expert witness goes beyond a friendly smile or steady eye contact. It is about demeanor — humility, clarity, patience, and an objective tone. A likable expert acts as a teacher, not a hired gun, explaining rather than arguing.  This includes acknowledging fair points from the other side, avoiding jargon, and clearly explaining their reasoning.  Jurors respond well to experts who seem sincere, balanced, and focused on helping them understand the case — not just trying to win.

In your first meeting, watch for red flags: Does the expert interrupt, get defensive, or seem uncomfortable with tough questions?  Do they come across as arrogant or impatient?  These traits can damage credibility on the stand. The best experts stay calm, respectful, and composed under pressure — qualities that build trust and make a lasting impression on the jury.

Clear communication

A medically accurate opinion is of little value if the jury cannot understand it.  Medical malpractice cases often involve complex anatomy, surgical procedures, diagnostic criteria, and intricate decision-making processes.  If your expert cannot explain these concepts in clear, engaging, and plain terms, the jury will tune them out, leaving the opposing expert’s testimony to potentially carry more weight.

The best expert witnesses are, at their core, excellent teachers.  They use visual aids, analogies, and clear, simple language to make complicated concepts accessible without oversimplifying them. They break down complex charts, imaging studies, or treatment plans in ways that leave jurors nodding in understanding rather than looking confused or intimidated.

Watch out for experts who give long-winded, rambling answers or slip into lecture mode on difficult to understand medical concepts. Clarity, brevity, and effective pacing are essential.  Ideally, your expert should sound be able to break down complex medical issues in clear, plain terms that any ordinary person could grasp, no matter how complicated the topic may be.

It is also important to remember that jurors look to your experts for permission to find in your client’s favor.  They do not just want to understand what happened; they want to know whether the physician’s decisions were reasonable or not under the circumstances at the time.  A well-spoken expert who can clearly articulate why a doctor’s actions did or did not meet the standard of care, can empower the jury to reach a fair verdict with confidence.

Your experts are your case

Medical malpractice trials are, at their core, stories told through experts. The plaintiff’s experts usually tell a story of preventable harm while the defendant’s experts typically convey a story of reasonable care under difficult circumstances.  The jurors choose which story they believe and that will often decide the verdict.  That is why the experts you pick matter so much.  When you find the ideal experts and prepare them properly, you gain advocates in the courtroom and on the witness stand who can carry your case all the way to a favorable verdict for your client.

Jacob Pierce is a Roanoke-based trial attorney with Woods Rogers. He focuses on defending medical professionals from malpractice claims.