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.
I’m being bullied!
Don’t fear an attack on the stand. Prepare your answers ahead of time, and a calm, cool and collected delivery.
Opposing counsel’s job is to find and exploit the weakness of anyone they are questioning. In fact, they are ethically bound to do so. (See ABA Journal, The Professional Lawyer “Ethical Issues in the Use of Expert Witnesses” [1])
Assume the attorney will have looked into you, probably online, maybe using a databse like Lexis/Nexis. Forewarned is forearmed. Knowing what they know, anticipating any targets on your back allows you to prep. answers that take the wind out of opposing counsel’s sails.
What They Can Find Out About You
- if you’ve ever been disqualified as an expert witness and why
- The standing of your licensing
- History of any sanctions or complaints against you with your state’s licensing board.
- Insights from an expert in your field opposing counsel retained as an Expert or Consultant.
Due Diligence Selfie
Let’s begin with challenges to your qualifications and a due diligence selfie.
Ego-Surfing
Start in Incognito Mode[2] and Google yourself, your name, your practice name (if it’s different,) and combinations of your name and areas of expertise.
Follow Results
Is your footprint accurate?
For example, affiliations with hospitals and clinical practices that are out of date. Ask those practices to remove your name.
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.
Hold your CV accountable
CVs report a wealth of information. Get a second set of eyes on your CV. Ask that your CV be scrutinized to ensure it contains no mistakes or confusion about your credentials. Clarify, fix, update.
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
One Psychiatrist identifies herself online as a “Board Certified Forensic Psychiatrist.” On closer examination, using the VerifyCert tool, 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?
In this example, a lower-case “forensic psychiatrist” is one solution. Better, would be to state she serves as a forensic psychiatrist, without aligning the words with “Board-Certification.”
Disqualification
Counsel can always challenge an expert, to exclude their testimony. The most successful challenges are that the expert is not an expert about the question at hand and/or outside their expertise. For example, a Forensic Psychologist who relies on medical information and incorporates it into his/her findings.
Solutions
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?
Answer: No.
Question: You pay almost $400 to be listed in [directory]. Isn’t that “paying” to get jobs?
Answer: No.
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 mastery of knowledge and merit documented by performance in Fellowship and the Board exam.
- 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.
Conclusion
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.
Endnotes
[1] Wertlieb , N. J. (2017). Ethics Issues in the Use of Expert Witnesses. The Professional Lawyer, 24(3). American Bar Association. https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-3/
The Professional Lawyer is a Journal published by the Center for Professional Liability and the American Bar Association.
Copy of the article chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.americanbar.org/content/dam/aba/publications/professional_lawyer/24-3/ethics-issues-use-expert-witnesses.pdf
[2]
-
- 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. HOW: 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:
Also of Note
- “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.
-
Patient Reviews. Worried about poor patient reviews online? 2 stars from 1 person can visually suggest to an attorney you are subpar. All they see is stars.
A negative patient review is a reflection of personal opinion, however, is impossible to challenge. Luckily, reviews are rarely brought up on the stand.
You can tackle inaccurate comments. Ask the website (HealthGrades, WebMD, etc.) to remove the review. Bear in mind that it is protected speech. People are entitled to their opinions and sharing it with others. Unless it is defamation, you probably won’t get it taken down on sites like Yelp. It is easier with Google and with other sites, it is worth a try.
Psychiatrists are more vulnerable because of the nature of their patients–people struggling with mental illness. Transference can be especially problematic.
-
Successful Takedown. I successfully had a Google review taken down because the person revealed medications and strength they claimed was prescribed by the doctor and didn’t work (in fact, the doseage was exponentially off, revealing the review was not a legitimate complaint,) In this case, we advised Google it was confidential health information in violation of HIPAA. Google took it down.
Generally speaking, asking for a review to be deleted is not usually successful–I won’t lie–but it’s worth trying.
Practice Development for Expert Witnesses
Beryl Vaughan, Consultant
