Critical Care Plus: What to Say When You Have to Testify: Advice from Three Top Experts
Conform testimony, prepare, and look em straight in the eye
By Julie Crawshaw, CRC Plus Editor
When called upon to testify in court, physicians need to make sure they conform their testimony to what’s admissible in court, says Joelle Moreno, assistant professor at Boston’s New England School of Law.
Moreno, who teaches evidence at the school, also runs a training program for physician witnesses in the New England area. The program evolved from a combined psychology/psychiatry forensic program at University of Massachusetts.
"I think physicians have special obstacles," says Moreno, who is married to a doctor. "There’s a huge difference between the way judges, juries, and lawyers think about arriving at the truth and the way that scientists do."
The rules of evidence in medical research, Moreno observes, are designed to keep everybody moving in the same direction toward some objective, provable, verifiable, valid scientific principle that can then be incorporated into the governing methodology.
The rules of evidence in a trial are aimed more at keeping it a fair fight than at getting to what one might think of as the truth. As an example, she cites a reliable confession obtained in violation of the defendant’s rights that’s not admissible evidence despite being the best and most persuasive evidence that the defendant and perpetrator are the same person.
"It’s antithetical to scientists that in law you have a system called fact-finding that’s adversarial and which the truth is sometimes not as important some other principle," Moreno says. "I think that’s hard for people accustomed to thinking about their work as an effort to get as close to the truth as they can."
Remember That the Witness Controls the Testimony
When testifying, physicians should be aware that while the judge rules the courtroom, the witness controls the testimony, Moreno says. She emphasizes that witnesses should answer only those questions they clearly understand and then only in the way they want to answer them, at comfortable pace and in between whatever breaks they need to take.
For example, if the lawyer is speaking too quickly, the witness can say, "You’re going too quickly for me."
If the lawyer rapidly fires one question after another the witness can ask for a slower pace. "You need to understand that though you may feel powerless, that’s an inaccurate perception," Moreno says.
Witnesses don’t have to be tough or assertive to be effective, Moreno says. The most effective physician-witness is one who comes across as genuine, serious, and dedicated.
"The more tough and aggressive you appear on the witness stand, the more biased you appear to be," Moreno says. "Remember, everybody in that room is just doing their job. Your professional integrity is never on the line, even though it may sound that way when you’re up there."
Timothy D. Reuben, a partner in the Beverly Hills firm of Reuben & Novicoff, litigates many cases that involve medical testimony. Lawyers, Reuben points out, tend to use language that may be inexact for a physicians and nurses, whose work is technical and precise. Lawyers want to simplify issues for juries, Reuben says, and will sometimes misuse language. Physician witnesses must be sensitive to the language used to be sure their testimony isn’t misconstrued.
"Don’t guess, especially when you know there are records that will show specific facts," Reuben says. "Don’t volunteer information beyond what’s being asked of you. Answer the question, but don’t elaborate unless specifically directed to do so."
Physicians do not like to look ignorant. If you’re sitting there saying you don’t know or remember, you start to feel stupid. Listen to the question carefully.
Jurors Often Have a Hard Time Relating to Doctors
Doctors frequently have a hard time simplifying their language to the point where jurors can relate to them, Moreno says, relying on jargon then feeling threatened by cross-examination because they think their professional judgment is being attacked. Such discomfort often causes physician witnesses to become hostile, which makes them easy for an attorney to manipulate.
The best thing physicians can do for themselves is to get as much advance information as possible before entering the courtroom, Moreno says. "You need to pin down the attorneys—find out if it’s a jury trial or judge trial, if you’re testifying at a preliminary hearing first," she says. "Ask if other experts will be testifying, if you’ll be permitted to give an opinion or only to testify to fact," Moreno says. "If the attorney isn’t explaining things clearly, don’t hesitate to ask for clarification. Find out if the attorney subspecializes in an area with a limited pool of experts or literature. There may be studies that defense attorneys rely on over and over again that the physician witness has to be prepared to refute."
Most lawyers are happy to talk with the witnesses they subpoena, Reuben says, and will frequently make "on call" arrangements with emergency and ICU physicians and nurses for precourt meetings.
Percipient Witnesses Have Special Problems
Expert witnesses are usually pros and physician defendants usually have all the legal counsel they need. But the most common courtroom scenario for physicians (that of percipient witness) can also be the most difficult, Reuben says, "They’re not represented by a lawyer who’s looking out for them," he says.
Reuben says percipient physician witnesses have two major problems. The first is knowing what patient information can be legally divulged to make a point in court. "Every state has its own statutes, but the basic premise underlying medical records is that they belong to the patient," Reuben says. "Physicians, nurses, and ICU personnel had better not be testifying what’s in them without first making sure they have legally documentable permission. If the patient is unable to act, make certain you have valid written consent from the person authorized to act on that patient’s behalf."
The second problem percipient witnesses have is becoming the target of a lawsuit themselves. "I’ve seen an ER physician who gave deposition testimony for the plaintiff get sued later by the plaintiff’s attorney," Reuben says.
The physician’s professional liability insurance carrier refused coverage because the physician had allowed himself to be deposed without informing his carrier. "Let your insurance carrier know when you’re under subpoena," Reuben counsels. "The company may well want to have one of its attorneys with you in court."
The employing hospital should also be immediately notified of an ICU staff member’s subpoena, as it may also want to retain an attorney.
As percipient witnesses, physicians often forget that they need to retain a truly objective posture and can’t be perceived to have aligned with one side or the other, Reuben says. "Find out in advance what the attorney who is calling you will ask on direct examination and get that attorney’s best estimate of what will be asked on cross-examination," he says.
Reuben points out that some states allow subpoenaed witnesses to collect fees from the party who issued the subpoena. "You may be entitled to an expert witness fee even though you are a percipient witness and not a paid expert one," Reuben says. "If that attorney doesn’t pay you, have that issued raised by counsel to the court."
When Possible, Take Visual Aids to Court
Work with your attorney beforehand to develop demonstrable evidence, says Kevin A. Duffis of Cotkin, Collins & Ginsburg in Santa Ana, Calif. "I cannot over emphasize the need to prepare before trial," Duffis says. "Having visual aids allows you to escape the confines of the witness stand where jurors may perceive you to be just a talking head." Jurors, Duffis points out, like to feel they are learning about the issues of the case. "If you can get up and move around, you become more relaxed," Duffis says. "You can go into a demonstrating mode that raises heads above the level of the jury and makes you appear more authoritative."
Moreno concurs that visual aids can be a big help, saying that it’s often helpful for a physician to bring a chart, even a big pad or paper and a marker or a blackboard to help them explain things more clearly.
Presentational Skills Essential to Smooth Testimony
Duffis says that physician witnesses need to develop some specific presentational skills to make sure their testimony goes more smoothly and should be especially careful to make specific eye contact with jurors. "Relax and make certain the jurors can see your eyes," Duffis says. "About 70% of human communication is nonverbal, and when a jury can’t see your eyes, your credibility drops enormously."
Witnesses should remember to speak directly to the jury as they would speak to an audience when acting on stage, says Duffis, who acted professionally for 15 years prior to entering law school. "When I’m examining my witness, I always position myself next to the jury box so when the physician speaks to me, in effect he or she speaks to the jury," Duffis says. "Be aware that opposing counsel will position themselves on the opposite side of the courtroom or remain at the table in order to keep the physician from looking at the jury."
Duffis also stresses that witnesses need to know when to expand on the answer to a question and when to answer narrowly. Don’t get trapped into yes or no questions, he warns.
"Plaintiff’s attorneys are especially wise in asking closed-end questions, making you give an answer," Duffis says. "Fight back. Explain to both the jury and the cross-examining attorney that you can’t answer that yes or no, then explain why."
Duffis observes that an experienced plaintiff’s attorney will often try to cut a witness off. Don’t concede to that, he says, and if the attorney still doesn’t let you answer, turn and look at the jury. "They’ll feel empathetic because they understand that you weren’t allowed to answer that in the way you wanted to," he says.
Don’t be Afraid to Appear Sympathetic
Physicians who are being sued shouldn’t be afraid to appear sympathetic to the plaintiff. "You need to acknowledge, especially on cross-examination, that you have empathy for the patient’s position," Duffis says. "Often physicians are afraid that showing empathy is admitting wrongdoing, and that’s not true. I think it makes you a much more sympathetic witness in the jury’s eyes to say I understand this person’s plight, but this is why they received care well within the standard of care,’" he says.
When giving "ultimate opinion testimony" about whether the treatment performed met the standard of care or whether you should have done anything differently, be sure not to blink, Duffis counsels. Looking jurors straight in the eye makes them intuitively feel you’re telling the truth.
Have the facts of the case down cold, Duffis adds. "I can’t over emphasize how important it is to prepare, prepare, prepare," he says. "There’s nothing worse for an attorney than getting a physician on the stand and hearing that he or she doesn’t recall or know whatever happened."
Learn About Jury Instructions and Use Them
Incorporating jury instructions into your testimony is an excellent way to increase your credibility in jurors’ eyes, says Duffis, so quote some as if they are your own words. As an example, he points out a California jury instruction that says that if there are two viable roads for physician care and treatment and the physician chooses the wrong road, the outcome may not be deemed negligent.
"Patients can’t be treated retrospectively," Duffis observes. "Paraphrasing this jury instruction supports a physician witness’s position, and in closing arguments the attorney can show a blow up of the law.
Another jury instruction useful to incorporate is informed consent, Duffis says. Duffis observes that the reality of informed consent is that patients tend to forget most of what they’ve been told about medical procedures or medication because they see it as negative information.
"They don’t want to apply that negative information to themselves, which is why it’s not unusual for patients in court to deny they were given it," Duffis says. "It’s helpful to work that fact into your testimony by pointing out that’s why you documented giving the information by putting it into the medical records."
The principles that underlie informed consent, Duffis points out, create a double standard for determination. Not only does a jury need to be convinced that the patient was clearly informed, but that a reasonable person, given the same information and under the same circumstances, would submit to the treatment provided. "Working that information into testimony helps the attorney in closing arguments," Duffis says. "Then I can illustrate it with a blowup that shows informed consent is the law."
(Editor’s note: Joelle Moreno can be reached at (617) 422-7271; Tim Reuben at (310) 777-1990; and Kevin Duffis at (714) 835-2330.)
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