Tips for Testifying

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Tips for Testifying

• Anne Smith
• Medical Director VFPMS

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General Duty to the Court

• An expert witness has an overriding duty to
  assist the Court on matters relevant to the
  experts area of expertise.
• An expert witness is not an advocate for a party.
• An expert witness paramount duty is to the Court
  and not to the person retaining the expert.

guidelines from the Federal Court of Australia
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COURT TESTIMONY

• Effectiveness depends on CREDIBILITY
• Credibility depends on
• Preparation
• Impartiality
• Honesty
• Keeping within the confines of your expertise

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Credibility

• Influenced by appearance, demeanour, voice and
  language (oath 1st impression), eye contact,
  nonverbal communication, firmness and sincerity
  of belief, perception or ability to perceive,
  ability to remember, accuracy ( consistency)
• Supported by status of credentials and employment
• Challenged by evidence of bias, prejudice,
  interest, or corruption, certain criminal
  convictions, prior bad acts, prior inconsistent
  statements, or untruthful character.
• May be regained by explaining any damaging facts,
  having another witness testify that he/she is
  honest, (Mud sticks)

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Credibility

• Means being trustworthy believable.
• The result of countless cues signals
• Reflection of our personal and cultural baggage.
  A function of our charisma, our physical
  features, and our world-views.
• Tempered by our preparation for the task, our
  comfort level speaking in public, our health on a
  given day, and a hundred other factors.
• Some of these factors are within our ability to
  control others are not.
• Marc D. Garfinkle

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Objectivity

• An expert witness does not compromise objectivity
  by defending, forcefully if necessary, an opinion
  based on the experts specialised knowledge which
  is genuinely held
• but may do so if the expert is, for example,
  unwilling to give consideration to alternative
  factual premises
• or is unwilling, where appropriate, to
  acknowledge recognised differences of opinion or
  approach between experts in the relevant
  discipline.

guidelines from the Federal Court of Australia
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Impartiality

• Stick to the facts
• Eliminate bias
• This is NOT time to go out on a limb
• Focus on the TRUTH
• (the whole truth, and nothing but the truth..)

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Ask yourself Is your evidence (legally) able to
be presented?

• History of prior criminal behaviour /_
  sentencing
• In accordance with local reporting requirements /
  legislation re notifications to statutory
  authorities
• Hearsay (depends on the court)

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Ask yourself Is your evidence (legally) able to
be presented?

• Daubert whether the theory or technique in
  question can be (and has been) tested, whether it
  has been subjected to peer review and
  publication, its known or potential error rate,
  and the existence and maintenance of standards
  controlling its operation, and whether it has
  attracted widespread acceptance within a relevant
  scientific community
• Daubert v. Merrell Dow Pharmaceuticals
  (92-102), 509 U.S. 579 (1993)
• Hard vs soft sciences
• Eg DNA fingerprinting vs social sciences /
  psychology (opinion about witness reliability,
  state of mind, interpreting behaviour)

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Tips

• Lawyers seldom tell other professionals about the
  tricks they use to play a witness in court.
• Witnesses often feel as though they participated
  in a game they thought they understood but later
  realised their reactions to certain questions
  were entirely predictable.
• Lawyers are trained to elicit certain reactions
  from witnesses.
• We witnesses need to be aware of these techniques
  in order to
• develop strategies to counteract them
• provide much better quality testimony
• protect ourselves and our profession from
  exploitation
• protect ourselves from the consequences of doing
  less than an excellent job in court.

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Familiarise yourself with Court process

• Ask advice from experienced peers.
• Understand the layout of the court, the process
  of presenting your evidence and how to address
  the decision maker(s)
• We play a role but on unfamiliar turf and we are
  not sure of all the rules.
• Be aware of the format of the court you are
  attending whether it is childrens court,
  family court, magistrates court, county court or
  the coroners court.
• Know what will be expected of you as a witness.
  Be prepared to be flexible because no one can
  predict all eventualities.

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The Subpoena

• Lawyers and protective workers have authority to
  subpoena you /records.
• Discuss your availability - a time least
  inconvenient for you / your patients.
• Affidavit or a written report or statement
  INSTEAD ?
• 2 hours stand-by rather than waiting at the
  court?
• Phone the person who issued the subpoena ASAP -
  discuss your options.
• Dont panic. Receiving a subpoena does NOT mean
  that you will be spending that nominated day in
  court. There is a strong likelihood that that is
  NOT where you will be on the day in question.
• If you do actually attend court, take ALL the
  records as requested.

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Talk to the barrister before court

• The best job a barrister can do for their client
  is to know what you, the witness, will say under
  cross-examination.
• If you have been subpoenaed by protective
  workers, talk with the allocated caseworker,
  their supervisor or someone in DHS legal unit.
• If you are not able to talk to the barrister well
  in advance of your court appearance attempt to
  arrange to meet them at court for a brief
  discussion before you give your evidence.
• You will probably BOTH improve your performance!

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Format of Court Appearance

• Remain outside the courtroom until it is time to
  hear your evidence.
• Oath or affirmation
• Sit or stand?
• Your evidence will be heard in a three-stage
  process.
• Evidence-in-Chief
• Cross Examination
• Re-examination
• Leave the courtroom, giving single polite nod to
  magistrate, judge or coroner
• Do NOT discuss the case until the hearing has
  concluded.

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Your Attitude Impartial Helpful.

• Remind yourself before entering the witness box
  of qualities you consider important (mantra) eg.
  courage and integrity.
• Be courteous and honest.
• Give concise but comprehensive answers.
• Your honesty and professionalism should be
  displayed more prominently than your wishes to
  advocate on behalf of the child.
• Attitudinal preparation is probably most
  important aspect of your preparation.

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Dress to impress.

• Your credibility depends on how you look as well
  as what you say and how you say it.
• Aim for power dressing dark coloured
  conventional suits.
• Minimal frills
• Keep still
• Look directly at the key players.

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Be polite

• Be courteously helpful.
• Regardless of the degree of provocation always
  remain excruciatingly polite.

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Control your temper

• This is one time when being obsequious may keep
  you out of trouble!
• Look at anyone other than the barrister inflaming
  your temper. Place your hands in your lap or on
  the witness-box to avoid making a clenched fist.
  Look totally unfazed.
• Avoid any signs that may indicate that you feel
  flustered, annoyed, impatient or irritated.

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Never allow yourself to be intimidated

• Doctors experience less intimidation than other
  witnesses.
• Never give in and say something misleading or
  incorrect because you feel bullied. Always insist
  on being 100 accurate.
• Remain extremely calm.
• You are highly unlikely to actually faint, vomit
  or lose sphincter control.

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Never be smarter than barristers

• A) It is too easy.
• B) You run the risk of antagonising the
  barrister, the judge and the jury, which is just
  what you do NOT want to do.
• Better to say you moron under your breath and
  hope the judge and jury feel the same way!

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You are who you are

• Be proud of who you are.
• You are expected to have only the knowledge and
  experience that you could possibly have acquired
  given your age, training, and exposure to
  relevant clinical material.
• Be factual, be polite but NEVER apologetic!!
  No-one will expect you to know more, do more, or
  see more than you have.)

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Address the decision-makers

• Direct your answers to those who are making the
  final judgement
• Point your feet towards the decision-makers .
  Always turn from the questioning barrister to
  answer decision-makers
• Your answers will be framed to appeal to a
  reasonable person
• Dont watch the wandering barrister.

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Anticipate respectful cross-examination

• Maintain your body posture and tone of voice.
• Treat all barristers in a similar manner.
• It is the defense barristers job to cast doubt
  on your evidence. For example, the barristers
  may attempt to demonstrate that you are not
  qualified to make a valid assessment of the
  child, are incompetent or negligent, are ill
  educated or ill informed, are mistaken, biased,
  rigid and not able to consider alternative
  explanations or you are simply a pompous arrogant
  person who cannot be believed.
• The overall issue is one of credibility. not
  (in)competence

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Response to yes or no questions

• There is no obligation, legal or otherwise, for
  any witness to just answer yes or no.
• You may say it isnt a yes or no question.
  
• You may wish to expand and discuss the variables
  which influence outcome.
• You may wish to conclude that one alternative is
  most likely but other alternatives are also
  possible

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Double questions

• Commonly used lawyer tricks - a rolled-up
  question or two questions in the one sentence.
• For example, Could the child be making this up
  because she wanted more attention?
• Could she be making this up?
• Is her reason for doing this to get attention?
  
• Say There are two parts to this question.
• Answer each part in turn.
• Two-part question with a true-true-non sequitor
  format. Clarify that although both parts of the
  question are true, part 1 does not cause or
  explain part 2.

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Offer opinions only when invited

• Unlike other witnesses, expert witnesses are
  allowed to offer opinions when directed by the
  court.
• Try and always back up your opinions with
  observational data and, if necessary, with
  evidence from available literature.
• It may be useful to do a quick MEDLINE search or
  check the Cochrane Library to ensure you are
  cognisant of all the relevant information.

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Stay within the confines of expertise

• This is MOST important advice for doctors.
• Lawyers know that doctors tend to drift a little
  from their area of expertise with very little
  encouragement. (ego)
• The risk of getting a little too carried away is
  considerable. We all like to have opinions about
  things and need to constantly remember that we
  can only give valid EXPERT evidence about things
  on which we are genuinely qualified to comment.
• Admit if you dont know.
• Admit if the rest of the world doesnt know
  either.
• Dont guess.

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Accept you CANNOT know every thing
Dont bluff!
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Consider alternative explanations

• When asked to consider an improbable scenario
  LOOK as though you are really thinking about your
  answer.
• Talk in terms of is, almost certain, probable,
  possible, undetermined, unlikely, highly
  unlikely, almost impossible
• or I cant imagine a sequence of events whereby
  that could occur but if you can think of one I am
  happy to consider it.
• Unless you are specifically invited to speculate
  do not comment on anything other than the facts
  before you.

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Flattery precedes a fall

• If a barrister is being especially pleasant and
  flattering - BEWARE!
• When asked if you really are a clever expert with
  a wealth of experience answer with a factual
  statement about your experience.
• It throws the barrister off course and tells the
  decision-makers that you will be accurate at all
  costs.

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A Courtroom Quote

• Lawyer "Now sir, I'm sure you are an intelligent
  and honest man--"
• Witness "Thank you. If I weren't under oath, I'd
  return the compliment."

http//rinkworks.com/said/courtroom.shtml
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Answer questions completely

• Interruptions and interjections from barristers
  might prevent you from completing your answers.
  Play on if the matter is not important.
• Interjections are part of the game. Barristers
  have to convince their clients they have done
  some work!
• If it IS important and you MUST expand your
  answer to give the court the whole truth
• ask, Your honour, may I complete my answer?
  

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Recognise weakness in your evidence

• Identify weaknesses in your evidence that might
  relate to bias, loosely defined terms or to test
  results.
• Most tests are not 100 sensitive and specific
• At the start of your evidence, admit if your
  report needs to be corrected or amended.
• Better for you to correct it early, than a
  barrister highlight deficiencies in your work at
  a later time.

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Know when to let go
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Debrief

• Unwind and discuss the experience.
• Work colleagues, family or friends willing to
  listen and share
• Self recriminations.
• Barristers too good? I could do better?
• Remember that your task is to present your part
  of the evidence to the court not to convince a
  judge or jury that the defendant committed the
  crime.
• The decision and the sentence are not your
  responsibility.
• After it is over - let it go.