Teaching expert witnesses to be more expert
By Peter Pollack
Being called to testify in a legal proceeding can be a source of consternation for anyone. For orthopaedic surgeons called as expert witnesses, the stakes are raised exponentially. A poor showing can damage reputations; failure to cooperate could result in the imposition of sanctions.
With that in mind, a group of physicians and lawyers shared their experiences at the Expert Witness Instructional Course Lecture (ICL) on Thursday morning. In addition to the traditional talking point presentations and discussions, two mock trials demonstrated important aspects of expert witness testimony and showed how lawyers are likely to approach examination.
The discussion was moderated by David D. Teuscher, MD, along with Charles Carroll IV, MD, Timothy G. Nickels, JD, and Paul F. Waldner, JD.
Legal proceedings are governed by specific sets of rules, and understanding these rules can help a physician provide quality testimony. Dr. Carroll began by explaining the importance of expert witnesses, who are allowed in the courtroom to assist in the determination of facts. For example, a physician may be called upon to establish or refute causation, establish or refute the standard of care, define negligence and the standard of reasonable conduct, and provide assistance to the jury so that lay jurors can understand the facts in a case.
The rules governing court procedure may be laid out either through federal law and court decisions, or state law and decisions. Because specific rules vary from state to state, all questions regarding legal procedure should be referred to a licensed local attorney.
Federal Rule 702—Testimony by Experts establishes the framework for expert witness testimony. It states “If scientific, technical, or other specialized knowledge will assist the trier of fact or to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
An older standard that is no longer applicable in federal court, but has wide acceptance on the state level is the Fry rule. This standard holds that admissibility of testimony requires general acceptance within the relevant scientific community, and that innovative procedures may require publication in a peer-reviewed journal.
Additionally, the Daubert rules, which date to 1993, establish the judge as a kind of “gatekeeper,” who is permitted to assess the validity, reasoning and methodology of expert testimony before allowing it in court. This federal standard is gaining acceptance in many state courts as well.
A “good” witness
Witnesses, just as plaintiffs and defendants, have rights, according to Mr. Waldner. An expert witness has the right to be treated civilly, to be reimbursed appropriately, to answer the question fully, and to not have an opinion.
“If a lawyer treats you in a manner that you consider unprofessional,” said Mr. Waldner, “stop the proceeding and calmly ask him or her to refrain from such behavior.” Should the behavior continue, it would be appropriate to ask the lawyer to leave, then obtain a transcript of the examination to send to the judge and the grievance committee.
Compensation should be reasonable, and determined by what is common locally. Outrageously high reimbursements can be used to shed doubt on a physician’s testimony, and can even result in a subpoena.
“As a physician, you should answer questions truthfully and completely,” advised Mr. Waldner. “If an attorney interrupts your answer, you have the right to finish what you were saying. The oath taken before a deposition is to tell the truth, and the whole truth. Anything less can be misleading.
“If you do not feel you have had enough opportunity to review the facts in a case and render a proper opinion, you should say so and decline to give opinion testimony,” he continued.
Additionally, expert witnesses have both the obligation to tell the truth and the obligation to prepare for the testimony. “It may be tempting to decide your position and “spin” your testimony accordingly, but doing so puts your integrity on the line,” he warned. “Attorneys can look up records of your previous testimony in other cases, and if they find conflicting testimony, they will be sure to use it during cross-examination.”
It helps to have an accurate and up-to-date curriculum vitae. The deposing attorney should always advise the expert witness of what he or she expects to cover during the trial. If this isn’t done, the witness should call the attorney and ask.
An even “better” witness
Virtually every presenter emphasized the importance of preparation. Both Mr. Nickels and Mr. Waldner stated that a witness should answer questions clearly and completely. That includes listening closely to the question and responding only to what has been asked.
“There are times when it may be tempting to make a speech about a topic that seems important,” said Mr. Nickels, “but the legal proceedings are only interested in the answer to the question. Be a listener first and a speaker second.”
To avoid looking odd or fake to the jury in a videotaped deposition, the expert witness should look sometimes at the deposing attorney and sometimes at the camera. Focus on the lawyer when being asked a question; on the camera when making an explanation.
Mr. Waldner also suggested requesting a copy of any videotaped depositions. “Take the tape home and have your family watch it and comment on your performance,” he advised. “Teenage children are especially helpful in this regard, as they won’t hold back their opinions. Hearing their critique can be educational, although it may also be painful.”
With strong preparation and a good understanding of the legal procedure, an expert witness can make a quality contribution to court cases requiring such testimony. But “before stepping into a courtroom or making a deposition, always do your homework in both the legal and medical realm, and above all, be truthful,” concluded the presenters.