Discredited Testimony Can Turn a Jury on a Dime
How to Ensure that Doesn’t Happen to You.
Expert witness qualifications are always in the cross-hairs of a trial attorney.
Don’t fear an attack on the stand. Here are tips on what you need to know to take the wind out of opposing counsel’s sails.
Opposing counsel’s job is to find and exploit the weakness of anyone they are questioning. In the case of an Expert Witness, such as a Forensic Psychiatrist or Psychologist, that includes the legitimacy of their credentials, claims of experience, adequacy to testify or the quality of their opinions. The attorney is very likely assisted by an expert in your field whom they have retained, as an Expert or Consultant. The attorney or consultant will pour over your CV, and expert report, to highlight every opportunity to diminish you. If you know where they’re heading, you can prepare answers to deliver with confidence.
Due Diligence Selfie
Let’s begin with challenges to your qualifications.
Conduct a due diligence assessment on yourself.
- License status and Board Certifications. Are they in good standing and accurate? Most state Medical Boards and Licensing bodies provide consumers with a tool to verify licensing in medicine or psychology. Psychiatrists and Neurologists should check the ABPN Verify-Cert tool to see what attorneys will find about whether your Board-Certification is active, and in what fields you are Board-Certified. Expert Witness qualifications are expected to be spotless. If you have spots, I’m going to help you deal with it below.
- Ego-Surfing. What does the internet show about you? Start in Incognito Mode* and Google yourself, your name, your practice name (if it’s different) and combinations of your name and areas of expertise.
- Images. Don’t forget to check “Images” under the search bar. These are images that appear on the internet in association with your name or names like it.
Poor reviews are so annoying. 2 stars from 1 person can visually suggest to an attorney you are subpar. All they see is stars.
This is catnip for opposing counsel.
Tackle Inaccurate Comments
When you find information online that is outright inaccurate, you can ask the website (HealthGrades, WebMD, etc.) to remove the review. The patient negative review that is a reflection of personal opinion, however, is impossible to challenge. It is protected speech. Psychiatrists are more vulnerable to negative reviews on Yelp, Vitals or Google because of the nature of their patients–people struggling with mental illness. Transference can be especially problematic. If you’re targetted by one patient you should ask the site to remove the review. It’s not usually successful–I won’t lie–but it’s worth trying.
Hold your CV accountable. CVs report a wealth of information, but you–or better yet, a second set of eyes–should scrutinize your CV to ensure it contains no mistakes or confusion about your credentials. Rewrite anything that sounds defensive, or over states your expertise. Never, ever tell a white lie. This is so important that a CV audit is high on my best-practices checklist. A poor CV can damage your reputation, making it a marketing issue as well.
Misrepresentation of credentials. If you aren’t Board-Certified in Forensic Psychiatry don’t imply it. One Psychiatrist identifies herself as a “Board Certified Forensic Psychiatrist.” On closer examination she is Board-Certified in general Psychiatry. She is not Board-Certified in Forensic Psychiatry. She issues forensic opinions. Her statement is “descriptive” but misleading. Stating Board-Certification, followed by the words “Forensic Psychiatry” is at best a gross misrepresentation and at worst, lying. Who wants that conversation on the stand?
The expert’s report includes opinions outside the expert’s qualifications. The most common I find is the rendering of opinion by a Forensic Psychologist about medical information, like interpreting medication interactions.
2 solutions that follow Best-Practices: (a) Include the appropriate caveat, (b) if there is a report of a qualified doctor, you may consider referencing it and proceeding by “assuming as true” the conclusions he or she has drawn.
If you’re not sure if you’re overstepping, give your report to your most trusted colleague for an honest assessment. You may very well feel at ease and skilled in stepping outside your wheelhouse. That does not mean you are actually qualified to do so. However, if you have special training or experience, state it in your report.
- The appearance of greed. It is acceptable for an attorney to ask you if you advertise your services. The fact is, you do not perform your services as a free public service. Without clients, you have no income. Juries understand that when you explain it with honesty. On this site: “Demeanor: What are you communicating to Attorneys and Jurors?”
- Marketing Shame. As you can imagine, as a marketing consultant, the occasional forensic doctor calls me sheepishly, ashamed or fearful about marketing–that it will somehow sully their reputation. How does making a living have anything to do with professional reputation? Skill, credentials, qualifications, integrity guide reputation. Marketing guides visibility.
- You cannot invite interest unless attorneys know you exist. Marketing isn’t a guarantee you’ll be retained. However, being invisible is a guarantee you will not be retained.
- Weathering Cross-Examination about Marketing. Here are examples of how you might answer an attorney about marketing.
Question: Do you advertise your services?
Answer: Please clarify the word “advertise.”
Question: Do you pay money to get jobs?
Question: You pay almost $400 to be listed in [directory]. Isn’t that “paying” to get jobs?
Question: What are you paying for then?
Answer: The opportunity for my credentials, experience, and contact information to be presented alongside those of my colleagues.
Walk a Mile in an Attorney’s Shoes
The best way to deal with potentially painful challenges to your expert witness qualifications is to first put yourself in the shoes of an attorney seeking to discredit you.
Identify the most damning information available. Write up a script to answer challenges. Practice until you can state it with confidence. I work with my clients all the time to handle this sort of questioning–though I will not accept clients who have engaged in unethical behavior.
Answering difficult questions: Case Studies
Example: Medical School out of the US
A Forensic Psychiatrist attended a little-known Medical School out of the US. US Residency and Fellowship at respected hospitals followed, along with Board-Certification. Non US Schools are treated with some trepidation by juries, unless it is Oxford or Cambridge. Many people do not know the quality or reputation of schools in other countries, let alone the US.
Here are ways to handle difficult cross-examination.
Question: “Where did you attend Medical School?”
Answer: Name the school. [You don’t need to offer the country unless you’re asked.–keep it short and true]. Any further discussion or attempt on your part to introduce qualifying comments will make you look defensive.
On Rebuttal: “What medical training qualifies you to be Board-Certified?”
Answer: “After acceptance into Fellowship in Forensic Psychiatry at [School] in [Location], I was awarded Board Certification in Forensic Psychiatry by the American Board of Psychiatry and Neurology. I was previously awarded Board-Certification in Psychiatry following 4 years of residency at [school] in [city and state.]”
See what I just did there?
(1) Answered the question by establishing the highest level of training in a US School of calibre. All Forensic Psychiatry Fellowships, by the way, are at respected schools.
(2) The word “awarded” clarifies that Board-Certification is based on merit documented by performance in Fellowship and testing.
- The impression of bias. It’s not always practical for doctors (MD, PhD, PsyD) to pick and choose cases on a 50/50 plaintiff-defense split. The financial luxury of turning away cases for this purpose is an admirable goal. My clients and I strive for that result. In the meantime, do your best to avoid cases that don’t pass the smell test.
- Don’t accept cases that require you to be biased! This sounds so obvious. I wouldn’t mention it if it didn’t come up, but it does. Before accepting any work, clarify you will not guarantee a favorable opinion. For example, “IME Mills.” IME Mills are companies that mass produce forensic reports. Many work only with insurance companies–insurance defense. I guarantee you will hear from these companies. They will offer you much work at a low pay. They take their cut as the middleman. They count on your opinions to support their client. Whether your opinions do, or don’t, please consider with care whether to affiliate yourself with such companies.
Tap the extensive experience of attorneys who have already gone to trial with Experts like you. Work with the attorney who retained you to develop answers to hotspot questions. She or he has first-hand experience in cornering experts, and is motivated to help you withstand negative scrutiny.
When I review and research the reports, practices and professional behavior of a forensic psychiatrist or psychologist-or help an attorney select such a professional, I watch for every vulnerability that could diminish the expert’s opinions. Expert Witness qualifications are ideally perfect. Mary Poppins was “Almost perfect in every way.” Most people have an “almost,” and opposing counsel will find it and grill you about it. Attorneys tell me there’s no substitute for the impartial eagle eye to find inconsistencies and missteps. I concur.
This article from the ABA is enlightening: “How lawyers can effectively cross-examine psychiatrists and psychologists.” First published in the ABA Journal. Filisko, G.M., “How lawyers can effectively cross-examine psychiatrists and psychologists.” ABA Journal, July 2017.
Incognito Mode is a Google feature allowing you to conduct a search that shows what others will find. (Non-incognito mode produces results based on the past history of searches on that computer.) If your screen background goes dark, then you’re in Incognito Mode.
Select the 3-vertical-dot drop down in the upper right hand corner of your Google screen and click on Incognito Mode (or Ctrl-Shift-N). Like this: