Anne Smith Medical Director VFPMS

General Duty to the Court

An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s 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

COURT TESTIMONY

Effectiveness depends on CREDIBILITY

Credibility depends onPreparationImpartialityHonestyKeeping within the confines of your expertise

CredibilityInfluenced 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)

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

Credibility

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

Impartiality

Stick to the factsEliminate bias

This is NOT time to go out on a limb

Focus on the TRUTH (the whole truth, and nothing but the truth…..)

History of prior criminal behaviour +/_ sentencing

In accordance with local reporting requirements / legislation re notifications to statutory authorities

Hearsay (depends on the court)

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)

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

TipsLawyers 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 todevelop strategies to counteract themprovide much better quality testimonyprotect ourselves and our profession from exploitation protect ourselves from the consequences of doing less than an excellent job in court.

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 children’s court, family court, magistrates’ court, county court or the coroner’s court.

Know what will be expected of you as a witness. Be prepared to be flexible because no one can predict all eventualities.

The SubpoenaLawyers 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.

Don’t 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.

Talk to the barrister before courtThe 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!

Format of Court AppearanceRemain 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 ExaminationRe-examination

Leave the courtroom, giving single polite nod to magistrate, judge or coroner

Do NOT discuss the case until the hearing has concluded.

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.

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’.

Be polite

Be courteously helpful.

Regardless of the degree of provocation – always remain excruciatingly polite.

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.

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.

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!

You are who you areBe 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.)

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

Don’t watch the wandering barrister.

Anticipate respectful cross-examination

Maintain your body posture and tone of voice. Treat all barristers in a similar manner.

It is the defense barrister’s 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

Response to “yes or no” questionsThere is no obligation, legal or otherwise, for any

witness to just answer “yes” or “no”.

You may say “it isn’t 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

Double questionsCommonly 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.

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.

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 don’t know. Admit if the rest of the world doesn’t know either. Don’t guess.

Accept you CANNOT know every thing

Don’t bluff!

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 can’t 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.

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.

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

A Courtroom Quote

Answer questions completelyInterruptions 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?”

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.

Know when to let go

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.