AAOS Bulletin - June, 2005

What not to do on the witness stand

Avoid making testifying mistakes as an expert witness

By Paul Waldner, JD

When you decided to become a doctor, you probably pictured yourself in an operating or emergency room. You probably didn’t think about sitting in a courtroom, facing a judge, jury and prosecuting attorney. But for most doctors, periodic interaction with the legal profession is unavoidable. It doesn’t have to be unpleasant, however, as long as you know what you’re required to do and how to do it.

As an attorney, I’ve seen smart people—brilliant physicians—make dumb mistakes on the witness stand. Here are the most common errors made by physicians when called upon to testify.

They’re not prepared

The single biggest testifying mistake that physicians make is a failure to prepare—not taking the time to thoroughly reacquaint themselves with the chart. The vast majority of problems that physicians experience during a deposition can be avoided by preparation.

Don’t just flip through the chart five minutes before the deposition while the court reporter is setting up in your conference room. Don’t wait until you get to the courthouse to review the chart.

To answer questions about a particular subject, you have to be familiar with it. With hundreds of patients, you’re not expected to know everything about all of them. That’s why you have charts—so you can review them before you walk into the treatment room, operating room, conference room or courtroom.

Appreciate this: With rare exception, the lawyers are going to spend a lot more time preparing for your testimony than you will. They’re going to read every page of the patient’s medical records and the most recent medical journal articles. They’re going to go over your curriculum vitae very carefully.

As an expert witness, you can expect to be paid for your time. This time can and should include preparation time. Schedule an hour for chart review on the day of your deposition or a few days before your trial appearance. Put it on your calendar and request that your staff leave you alone. Mastering all other aspects of testifying is virtually meaningless if you haven’t adequately prepared.

They don’t listen

When you’re testifying, you’re answering questions. It’s difficult to answer a question if you haven’t listened to it. But it occurs over and over again in depositions and in trials. An attorney asks a witness one thing and the witness starts talking, but isn’t really answering the question. And it’s because the witness just wasn’t listening.

The most frequent objection during depositions and trials is “Unresponsive.” It means the witness was asked one thing and answered another. It means the witness never did answer the question. It means the witness wasn’t listening.

Remember this: If you listen very closely to what you’re being asked, the talking part is relatively easy. When you are asked a question, look at the speaker! Your eyes help you listen. Watching the speaker’s facial expressions will help you understand what’s being asked.

Don’t read documents, stare at the ceiling or look at your watch during a question. Not only is it rude, it’s not compatible with good listening. Paying attention shows that you care.

They don’t answer the question

Lawyers often think they spend half of their lives asking questions that are never answered. Sometimes the failure to answer the question is deliberate. But usually, it’s unintentional. As mentioned above, if you don’t listen, you can’t answer the question that was asked.

Depositions and trial testimony are artificial forms of communication. Many physicians interpret testifying as an opportunity to give a speech about what they think is important, anticipating that their speech will be periodically interrupted by questions. Not so.

During testimony, the witness must be extremely literal. Give the literal answer to each question. This is not how we usually talk to one another. We frequently answer a question with a question, intending to both answer the question and make a point.

Many witnesses confuse literally answering the question with being evasive. But literally answering the question is what’s required of any witness. Giving a literal answer is not being evasive at all. It’s being smart.

They don’t know the rules

There are really only two kinds of evidence: admissible evidence and inadmissible evidence. All evidence must meet certain standards to be admissible. The medical-legal standard for admissibility centers on the adjectives “possible,” “probable” and “certain.”

The exact phrase that must be used as the qualifier for a medical opinion differs by jurisdiction. The most frequently used qualifying phrase is “reasonable medical probability.” Other qualifying phrases include “a reasonable degree of medical certainty” and the simplistic “more likely than not.” Know this standard! All of your opinions should be based on the applicable standard.

A possible event or condition would rarely be introduced into evidence. But a probable event or condition would rarely be excluded from evidence. If you think that something at issue is ridiculous (like an old injury laying dormant for years then suddenly surfacing and causing problems), concede that while it’s possible, it’s so remote that it’s misleading to even discuss it. In medicine, the number of possibilities may be infinite, which is why they’re usually not admissible. What’s probable, however, is what the jury is allowed to hear.

They fight cross-examination

Direct examination builds you up and cross-examination tears you down. During cross-examination, you might begin to feel like you’re in a fist fight and you’re on the ground. It doesn’t have to be that way.

When you are being cross-examined, be ready, willing and able to make certain concessions. Pick your battles carefully. During cross-examination, concede what should be conceded and firmly stand your ground on those issues of which you are assured you’re right. It will greatly shorten your deposition.

They don’t know their rights

Doctors should know their rights and obligations before ever testifying in a deposition or trial. By knowing your rights and obligations, you can avoid saying or doing something impermissible. By understanding your obligations, your testimony becomes more efficient. You’ll know what is expected of you and can take the time to prepare.

Paul F. Waldner, JD, is a partner in Vickery & Waldner, LLP. This article is excerpted from his presentation during the AAOS Instructional Course Lecture on Expert Witness Testimony, developed under the auspices of the AAOS Expert Witness/ Professional Compliance Program.

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