Context.—In our society it is well for a physician to know something of the workings of court and how to interact with attorneys. One need not go to law school to successfully navigate a legal proceeding as a physician witness.
Objective.—To show that a physician skilled at interacting with colleagues and patients can successfully apply those skills to interacting with attorneys and testifying in court.
Data Sources.—This work is based primarily on the author's experience in interacting with attorneys and testifying in court, with supplemental contributions from textbooks.
Conclusions.—Skillful testifying is simply the transmission of medical information in court in a professional, polite, and compelling manner, an ability within the grasp of any physician who has mastered the art of working with colleagues and patients. Careful, honest assessment of the medical matters in a legal case places a physician in a strong position, which the physician can maintain by remaining polite, even in the face of attempts by an attorney to denigrate the physician's professional abilities. The best witnesses tell the truth in a manner that compels people in the courtroom to listen.
All physicians receive training in the practice of medicine in medical school, but exposure to the legal realm is generally limited to a single hour's lecture from risk management on how to avoid being sued. A physician might rightly claim that had he or she wanted to know about law, he or she would have gone to law school, but in today's litigious society it is well for a physician to know something of the workings of court and how to interact with attorneys.
Like people, courts of law sometimes need the services of a physician to render a carefully considered diagnosis. In court, diagnoses are rendered in the process of testifying. Expert testimony on medical matters is an essential part of many legal trials; in fact, the most frequent type of federal trial involving expert witnesses concerns cases of personal injury or medical malpractice.1 Courts will continue to need expert medical testimony from physicians as long as disagreements concerning medical matters are settled in court. In a way, the venue of practice, be it in court or clinic, is immaterial; wherever there is need for a medical diagnosis, there is need for a conscientious, honest physician willing to base his or her opinion on the facts in a case.
Training in giving testimony is not a subject taught in medical school, but testifying is an art within the grasp of any physician skilled at the art of interacting with colleagues and patients. Skillful testifying is nothing more than the transmission of medical information in court in a professional, polite, and compelling manner. Transmitting medical information is a daily occurrence for physicians. What makes testifying different is that the transmission occurs not in the familiar surroundings of one's office or lab, but in unfamiliar surroundings and according to the unfamiliar protocols of court. Whether you wish to enter the field of expert witness testimony or have been called on as an expert witness through no wish of your own, this article is a guide to applying skills as a physician-teacher to testifying in court.
PLAYERS IN COURT
The first step in being an effective witness is to understand who the players are in the drama of a court trial. For the purpose of this article, there are 4 players in a trial—the jury, the judge, the attorneys, and the witnesses.2 The witnesses are admitted to the courtroom one at a time, so as a witness you will be alone on the stand. The witnesses interact with the attorneys, answering their questions. Although your interaction as a witness is with the attorneys, your statements are for the benefit of the jury, the group rendering a verdict in the case. Over all presides the judge as the sole authority of the courtroom. The most important social rule of testifying is to be polite, but it is especially important to be polite to the judge, just as it is especially important to avoid irritating the chief surgeon in an operating room.
Witnesses may be of 2 types in court—fact witnesses or expert witnesses.2 Fact witnesses testify to something that they saw, heard, or otherwise directly experienced that is pertinent to the case. Expert witnesses are individuals with training beyond ordinary human experience that can be used to help the court understand the facts in its case more fully. Medical training, for example, is beyond ordinary human experience, for most people do not go to medical school and practice medicine. Nevertheless, an understanding of medical principles can help a jury to reach a fair verdict. The judge in a given trial is responsible for determining whether an individual is to be considered an expert in a field for that trial. Once accepted as an expert, that witness is permitted not only to make factual statements concerning the case but also to offer his or her opinions on the case based on the facts. The privilege of offering opinions that the court accepts as evidence is what distinguishes the expert witness from a fact witness.
The authority to offer an opinion in court is critical for medical testimony, because a diagnosis is a medical opinion not a fact. Signs and symptoms are facts. In a certain case, the facts may be that a patient presented with pain in his chest radiating to his left arm, that this pain was brought on by exertion, that the patient's electrocardiogram showed ST segment elevation, and that his troponin levels were elevated. The diagnosis of myocardial infarction is an opinion based on these facts. That a diagnosis is an opinion does not weaken the diagnosis. Opinions can be strong. In a different clinical setting, however, the diagnosis may be less sure, so that a physician will speak of the 2 or 3 conditions in the differential diagnosis most likely to be responsible for the findings in the case. In this more difficult case, it may be clearer that the diagnosis is an opinion.
SERVING AS AN EXPERT WITNESS
Talking With Attorneys
Months or years before giving any testimony in a case, a physician who will serve as an expert witness will be interacting with attorneys. When dealing with attorneys, remember that an attorney is someone's hired advocate. Unless you hired the attorney that you are speaking with, that attorney is someone else's advocate, not yours. In other words, the attorney is not on your side. The attorney is probably not your enemy, either. This is neither cause nor call to be rude to any attorney, but rather a caution to remember that whatever you say or do that would give an attorney an advantage for his or her client will be used by the attorney to its full advantage. For this reason, following a few rules of conduct make it unlikely that your dealings with attorneys will prove disastrous for you. These rules are as follows:
Always be polite.
Always tell the truth.
Never speak idly.
Remember the strength of your position but play on that strength carefully.
Attorneys are professionals just as physicians are. Professionals are polite in their dealings with each other. Not only would it be wrong to be rude to or to belittle an attorney but your rude behavior would eventually come back to haunt you. Remember the point of the preceding paragraph; attorneys will use any advantage that you give them in court. If you make snide comments about the relative worth of medicine and law as a profession, if you humiliate an attorney because he or she knows less medicine than you do, then you may have won a small satisfaction, but you will lose your good reputation when the attorney makes public your pettiness in court. Even if the attorney is rude to you, you must be polite in return, a point I return to when I discuss the legal ploy of the ad hominem attack.
In dealing with attorneys about medical matters, your professional reputation is at stake, just as it is any other time you are practicing medicine. Consider the answers that you give to an attorney's questions as carefully as you consider the diagnoses you make at the microscope or in the laboratory. Should new information become available, that information may require you to alter your opinion, but you should not alter your opinion because you spoke without careful thought. Lying, on the other hand, is wrong, and lying under oath is perjury, a criminal offense. Always tell the truth, and speak after careful consideration.
Do not mention a medical matter that does not pertain to the questions of the attorneys. Few attorneys have medical training, and thus they cannot dismiss an idle comment because they do not recognize that the comment is idle. The attorney has come to you because he or she considers you an expert; everything that you say will carry equal weight in the attorney's mind. By extension, never jest about medical matters with attorneys. Attorneys do not practice medicine, do not deal with medical crises, and do not endure medical hardships such as the loss of a patient. Any raucous jibe or bitter quip that may be understood by physicians when uttered in its medical context will be repeated by the attorney in court, where your comment will make you appear callous and uncaring to the jurors.
Even if the attorney went to medical school, it is unlikely that he or she knows as much about your specialty as you do. Nevertheless, do not underestimate the intelligence and medical sophistication of any attorney, for skilled malpractice attorneys are savvy about the medical matters that earn them their keep, whatever side they happen to represent. In speaking with an attorney, you are in roughly the same position as being a pathologist at a morbidity and mortality conference. The others in the room know some medicine, but they do not know as much pathology as you, and they have not spent as much time studying the pathology of the case as you have. The appropriate attitude to have in talking with attorneys is humble confidence. You should be confident that you know your specialty and humble because no one masters medicine, one only practices medicine. Such humility will save you from the disastrous consequences of pride.
Remember that it is the attorney who is paid to take a side in a case. If consulted as an expert witness, you are being asked to evaluate the facts of the case and then offer your opinions based on those facts, including both diagnoses and additional avenues that merit exploration. You should not be an advocate, and you should not enter the field of expert witness testimony because this allows you to carry your banner in some cause célèbre into new territory. If you wish to become an advocate, then you should go to law school.
The final point about dealing with attorneys is to remember that the attorney is trying to win the case for which the client hired him or her. It is appropriate to think of a legal case as a sort of game, a game that combines the strategies of chess, poker, contract bridge, and war. Therefore, as an attorney is talking with you, he or she is assessing your strengths and weaknesses—in your knowledge of your specialty, in presenting your knowledge, in your appearance, in your bearing and manner, and in any other way that may help or hurt the attorney's case. Based on the attorney's assessment of you, he or she may decide to sacrifice you by not using you further, or he or she may hold you until the end as the trump card, all for the sake of winning the game for the client. Like poker, the game may be for high stakes.
Careful attorneys will have met with you before the trial to review your findings, assess your abilities, and ask the sorts of questions that the attorney will ask of you in court. Good attorneys live by a professional maxim that they should not ask a question in court for which they do not already know your answer. All of this is perfectly appropriate; changing your answers to put an attorney off his or her footing is dirty pool, just as you do not change diagnoses to keep clinicians on their toes. In court your testimony consists of answering questions asked by 1 attorney representing each party in the suit. The attorney who asked you to become involved in the case should be kindly disposed to you, because you will be saying things advantageous to his or her case (or else the attorney would not have called you to court to testify). Attorneys representing the other side or sides may be more aggressive in their treatment of you; this aggression is nothing personal, just part of testing your mettle in the hope of getting you to concede some point in their favor. Remember the knowledge that you have and maintain humble confidence in your abilities and position, and you should do well on the stand.
Questions concerning your opinion asked of you in court have the same 3 possible answers as any question asked of you by a clinician, namely:
Yes, your supposition or logic is correct.
No, that is wrong or the incorrect way to think of this matter.
I don't know.
The skill of testifying lies in answering the questions that are asked of you politely and in a way that will hold the interest of those who are listening to you. Recall that the best lecturers in college and medical school were those professors who understood that they were not only imparting knowledge but also giving a performance. A good performance is based on conviction not dramatics. It is not for a physician, let alone for a pathologist, to strive for high drama. Besides, the substance of what a physician has to say is dramatic enough on its own, when the matter concerns life or death or cancer or a potential medical error. The proper way to give a compelling performance while testifying in court is to have conviction in the importance of what you have to say. In other words, care about your subject.
A useful approach to testifying is to pretend that you are teaching a favorite patient about some medical topic. You do not blame a favorite patient for choosing not to be a physician, so you are patient if the matter requires several rounds of explanation. If the topic is complex, your presentation may require ingenuity to make the medical subtleties evident to a layman. Because you like a patient who is a favorite of yours, you do not put on a pompous show for him or her either.
As mentioned earlier, an attorney representing a side whose position might be hurt by your testimony will usually try to get you to concede some point in favor of his or her client. If your diagnosis is diametrically opposed to the client's position, however, then the only tack left for the attorney to take is to discredit your testimony. Assuming that you are a capable physician who has reached a carefully considered diagnosis, then the attorney will be unable to discredit your diagnosis (and thus your testimony) unless he or she is able to discredit you as a person in the eyes of the jury. It is the attempt to discredit you as an individual that gives testifying a reputation for being unpleasant. Knowing what to expect in court should help you to hold your own, graciously, just as you would maintain decorum with a surgeon who disagrees with your diagnosis.
The attempt to discredit you as an individual used most often by attorneys is so common that it has its own name—the ad hominem attack. Ad hominem is Latin for “at the man” and describes the practice of attacking you personally rather than attacking your conclusions. Whenever an attorney begins to berate you or tries to frustrate you or does anything to try to rouse you to some emotional response such as an angry retort or hot tears, then you are the subject of an ad hominem attack. If you can maintain your calm (and well you should), then you can easily recognize the beginning of an ad hominem attack, because the exchange will begin to veer toward the sort of bullying taunts of the schoolyard. Decide before you ever enter the courtroom that you will maintain your composure while you are on the stand, for this is your proper and best defense. No one enjoys a bully, but everyone enjoys seeing a bully frustrated. If you refuse to give in to the temptation to jab back verbally, then the attorney will soon begin to look foolish. What is more, the attorney knows this, and he or she is counting on you to rise to his or her challenge. If you maintain your decorum, then the attorney will have to stop, either because the judge puts an end to the matter (appropriate, but it does not always happen) or because the attorney will realize that he or she is turning the jury against himself or herself rather than against you. If you rise to the bait instead, then the attorney will point out to the jury that you are just another hot-headed and arrogant physician, implying that your testimony should be disregarded by the jury. It is frustrating to endure an ad hominem attack, but it is a pleasure to weather an ad hominem attack and emerge the victor. What's more, the jury will admire you for doing so.
Another ploy used by attorneys trying to discredit you is to lead you out of your area of expertise into discussing another medical specialty. This typically begins as the question “Now, doctor, you learned about all kinds of medicine when you were in school, didn't you?” You may then be asked about whether broken bones are painful and soon thereafter be asked questions about orthopedic practice. This is done to try to pit your testimony against that of another physician, an orthopedic surgeon in this case, in the hope of getting you to say what the attorney wants to contradict the surgeon's testimony. If you know the answer to the question, then you are welcome to answer it, but as soon as the question moves out of your area of expertise, you should disqualify yourself by admitting that you have no special training in that area. Do not let your pride lead you astray. Incidentally, a proper response to the question about whether broken bones are painful is not a simple “yes” but a statement that they generally are, but it depends on the circumstances in a given case, particularly on the degree to which an individual is intoxicated or otherwise impaired by injury or other means. Medicine, as is true of law, can be tricky.
Attorneys have still more ploys available to them in cross-examining a witness, but space does not permit more discussion here. The interested reader is referred to the author's book,2 as well as to books written about medicine and law from the viewpoint of individuals trained in law3 and in medicine and law.4
Depositions are legal proceedings held outside a courtroom that can nevertheless be admitted as evidence into a trial. Only attorneys and a court reporter attend a deposition. If admitted into court, the judge and jury would see or hear your testimony at the time of trial. Because no judge or jury is present, depositions look informal but do not be fooled by appearances. Depositions are legal proceedings just as binding as courtroom trials, so as a witness you should follow all the same rules of conduct as in trial. Some attorneys like depositions because it gives them the opportunity to have you speak your piece under oath. After you have given sworn testimony, attorneys become certain of what you must say in court.
A deposition is preferable to signing an affidavit, which is a written statement signed by a witness that the witness swears to be true. Affidavits help a given attorney but frustrate the legal principle of equal access to a witness by all sides in a dispute. To make up for the favoritism you show by signing an affidavit for 1 attorney you can expect all the other attorneys to come asking you to sign an affidavit for them, each affidavit worded to each attorney's advantage. Avoid this awkward situation by allowing all parties equal access to your knowledge in a deposition.
Depositions can also be helpful to you as a physician witness, for their timing should be more flexible than a trial and thus fit your schedule more easily. The attorneys may even consider your deposition sufficient and excuse you from going to court for the trial. Do not count on getting out of going to court, however, for if an attorney wants you in court to testify, then you will be compelled to appear there to testify.
The purpose of this article is to provide some guidance in dealing with attorneys if you are called on as a physician expert witness. Important points, such as reimbursement for your professional services in considering a case, have not been discussed but are mentioned in the books given as references.2–4 Most physicians hope never to go to court in any capacity, but if it becomes necessary for you to go to court, then do not fear. Careful diagnostic acumen coupled with polite manners will see you safely through rough water.
The author has no relevant financial interest in the products or companies described in this article.
Reprints: Gregory G. Davis, MD, Jefferson County Coroner/Medical Examiner Office, 1515 Sixth Ave S, Room 611, Birmingham, AL 35233-1601 (firstname.lastname@example.org)