AAOS Bulletin - April, 2005

The rights and obligations of an expert witness

Bring your expertise and objectivity to the courtroom

By Paul F. Waldner, JD

Everyone involved in litigation has a well-defined role. The role of the expert witness is to use his or her education, training and experience to help guide the jury through technical issues. The most important things an expert witness brings into the courtroom are that expertise and objectivity. An unobjective witness is not a credible witness.

If you are asked to serve as an expert witness, you should know your rights and obligations before you ever testify in a deposition or trial. In this way, you can avoid saying or doing something impermissible, such as disclosing a patient’s health information. By understanding your obligations, the deposition as a whole becomes more efficient. You will know what is expected of you from the deposing attorney and can take the time to prepare beforehand.

Every expert witness has the following rights and obligations: The right to be treated civilly; the right to be reimbursed for his or her time; the right to answer the question fully; the right to not have an opinion; the obligation to tell the truth, and the obligation to prepare for giving testimony. Let’s take a look at each.

The right to be treated civilly

Unfortunately, some lawyers confuse cross-examination with verbal war. They cajole, threaten, whine, accuse, insult and humiliate. This is not acceptable conduct during a deposition or trial and should not be tolerated.

What can you do when an attorney engages in such behavior? The last thing you want to do is to engage in similar behavior. Don’t fight the attorney during your testimony. Don’t raise your voice or cajole or make insults back at him or her. It’s unnecessary and childish. Just make a statement for the record:

“Sir, I expect to be treated civilly by you as you have been by me. I want to state for the record that I do not intend to sit here and have you shout at me, badger me or insult me. Unless you begin acting professionally, this deposition is over and I would invite you to leave my office. I then will obtain a transcript of your cross-examination from the court reporter and send it to the judge of this court and to the grievance committee.”

The right to be reimbursed

Your right to be compensated is something that should be taken care of before you testify. Reasonable compensation is what the courts allow. Some doctors who are testimony-averse attempt to shoo away the lawyers by charging outrageously inflated rates for their time. A rare but legal response to such behavior could be to subpoenae the physician to the lawyer’s office. This effectively waives the physician’s right to reimbursement.

The right to answer fully

The physician’s role during the deposition is to answer the questions. Nobody else in the room has this role—only you. Therefore, you should not allow the deposing attorney to advise you how to answer the questions, to interrupt or to disrupt your answer in any way. An attorney telling a doctor how to answer the questions is as ridiculous as a doctor telling an attorney how to ask the questions.

The right not to have an opinion

If, in your best judgment, you have reviewed everything necessary to render an opinion, by all means, one should be given. However, if the deposition is taken before you have had an adequate chance to acquire all the information needed to render an opinion, say so and decline to give opinion testimony on that issue or issues.

The obligation to tell the truth

Not only is this the most important obligation, it is the most obvious. This obligation, however, is oftentimes underappreciated by the person giving the deposition. By raising your right hand and swearing or affirming to tell “the truth, the whole truth, and nothing but the truth, so help you God,” you are not only doing the obvious—promising to tell the truth—you are also putting your own integrity on the line—something that should never be taken lightly.

It can be tempting to view the whole litigation process as so much posturing—deciding who you want to win and then just bending and twisting your testimony accordingly. Don’t do it. Lawyers have deposition banks. Lawyers will frequently have copies of many of your previous depositions before they take yours. Physicians who color or shade the truth, equivocate, or, in some instances just lie, are in for a long, long afternoon.

Don’t fluff up your curriculum vitae, exaggerate, embellish or make misrepresentations of any kind. You might never be faced with a grand jury subpoena, but the word will get out—fast.

The obligation to prepare

Deposing attorneys will usually advise you of what they expect to cover during the deposition or trial. If this is not done, call the attorney and ask. Otherwise, you are left guessing, which makes preparation time lengthy and most likely unproductive. This, in turn, hampers the effectiveness of the testimony.

Take the time to review the patient’s chart so that your answers to the questions are clear, concise and reliable. An added benefit of preparedness is confidence, which will shine through to the jury. As most attorneys will tell you, confidence breeds persuasion—the ultimate goal of the testimony.

Paul F. Waldner, JD, is based in Houston, Texas, and is a partner in Vickery & Waldner, LLP. This article is based on his presentation during the AAOS Annual Meeting Instructional Course Lecture on Expert Witness Testimony. It was developed under the auspices of the AAOS Expert Witness/Professional Compliance Program.

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