I sit here in my monkey suit, custom tailored, smart tie, long sleeved shirt, calf skin leather shoes, silk tie and suspenders; it can mean only one thing, I am headed to testify as an expert witness in court. Very few things can make me wear long sleeves or a tie for that matter…
I am not a “go to court” kind of clinician, never had a desire to do this for a living. I am a clinician who values his work with clients; the legal system does not interest me. I can be cynical when it comes to the term “justice” as many times it appears to me that justice tends to favor those who have the deepest pockets: Pockets deep enough to hire scores of professional witnesses that enjoy wearing silk ties and sounding important on the stand. I used to have a cheap rate for court as it never occurred to me that I would be used for court since I tell all my clients that I prefer to stay in my office and if they have a need for a court going shrink then they should consider going elsewhere. When I found myself subpoenaed I realized that I needed to find a way to discourage further cases so I talked with the Board of Directors who doubled the daily rate. Then I spoke with a friend who is a local judge and learned that even my doubled rate was considered cheap; clearly I have no head for making money, but then again I look at my work as my calling from above so I gave in and decided to make the best of the court situation. I bought a few nice suits and hoped to keep them secured in the garment bag in my closet (I had donated my old suits when I opened the not for profit as I thought I would never go to court again. Boy was I wrong).
I collected some thoughts on the subject as I have found myself fielding questions from colleagues who are in the process of preparing for court for either the first time or they simply never found a way to feel comfortable with the process. Below are simply my thoughts, none of which were developed with or vetted by any lawyers. They are simply my thoughts and observations, do with them what you will. They have served me well, though they may not work for you.
You have no friends in court: I have been asked many times by clinicians who our friends are in court and always come up with the same answer: no one. As an expert witness we have no friends. The folks who are paying for our time know that our testimony is not for sale, we answer questions truthfully regardless of the potential outcome or effects on their case. Because of this, you have no team, be prepared for everyone to potentially hurl hardballs at you. Think face; think much lower and far more sensitive. In Short, wear a mental cup and you should do well.
Know your client, know your case- don’t fumble on the stand when posed with simple questions. Know the multiaxial assessment, its parts and what they mean. Know the assessment of the client and the situations of the case at hand. If you do not know exact dates, that is what the records are for, you can look for them if they are that important, and if they asked for them, they are that important.
You do not have a side- as an expert witness you testify and leave; the outcomes are not your concern- YOU HAVE NO SIDE. The facts as you know them, your professional opinions are yours and they are NEVER for sale. You take no sides in a case as that is a legal issue and yours is psychological. You may have an opinion or assessment that may help or hurt a side but you are a free agent, free to answer all questions regardless of the outcome. I have helped and hurt just about every plaintive and defendant of just about every case, why; because no side is typically all right or all wrong and therefore both sides can ask potentially damaging questions for the other side. It is not my problem nor is it my concern as an expert.
Be honest: honesty is easy to remember. Bending an answer to help a side only makes you look like a hack. Be honest, be straightforward. Answer questions and leave.
Be prepared for personal attacks, attacks on your credibility, your reputation, education, anything. When an attorney realizes they have lost their case they typically resort to sneaky tricks and personal attacks to try to shake the expert witness. This only works if you allow it to. Stay calm, stay professional and respond to questions posed. If the question is what you feel to be beyond the scope or somehow improper feel free to pause for a second or two to see if there is an objection. If not, answer it the best you can. I remember once when an attorney thought they had something that could shake me and my testimony in a trail. He said something along the lines of “what would you say doctor if I told you that I was aware that you had an abusive father?” I paused for an objection which never came and then replied “I would say congratulations councilor; obviously you have read one of my many interviews or written works; that is common knowledge.” He then proceeded to try to show where my testimony could be slanted against fathers; that I was biased towards mothers in every case as I must have had unresolved issues with my father and saw every father as my father. I paused once more and thought “is the other lawyer sleeping?” before responding. I said something akin to “Sir, with all due respect, I am a father and a damn good one. Any issues I may have had regarding my childhood have been resolved. There are many good fathers and many good mothers, sometimes they are parents of the same child. Sometimes one parent is clearly superior or one parent is clearly abusive. Sexual organs do not define parenting ability.” This lawyer had a losing case and chose a losing strategy.
As an expert witness there is no such thing as “a yes or no” only question: I have been faced with this many times. “Yes or no doctor…” If I felt it could not be answered with a yes or no I simply said “with all due respect councilor, you have asked me a question that cannot be answered with a yes or no.” I have also said “with all due respect the question you asked requires at least three choices for an answer…” They do not like this to be sure but remember you are the expert witness.
You will likely use a poor choice of words, one of which may become fodder for one lawyer or another. Do not be afraid to restate or clarify. You may need to do this many times.
Ok, this last part is being written after returning. My monkey suit has been thrown off with an energy usually reserved for a bucking bronco. The thoughts of the case which must remain nameless are fresh on my mind…
Always reserve the whole day for court as you rarely get called to the stand on time, the questioning typically runs longer than planned and clients get angry if they are sitting alone in your office when they are supposed to be in session.
Court is like a legal version of whack a mole; you know that annoying game in the arcade that the over muscled, undersexed bruiser tended to play when you were trying to concentrate on Pac Man? The one with the club, the yelling and the sweat dripping because instead of using logic, calmly looking for signs or some kind of ratio that would help determine what one would likely pop up next, the bruiser just wailed away at every hole seemingly at once? Yeah, it’s kind of like that only instead of a mole you have a team of attorneys, each one asking questions, one sits down and the next one pops up and you repeat ad infinitum. At least you don’t have to worry about mullet sweat…
Speaking of sweat, don’t let them worry you; the more attorneys that ask you questions, the more practice you get answering their questions. My record so far is five attorneys during one appearance. It really is not something to worry about; what’s the worst that can happen? Besides, you are not there to make friends; you are there to do your job.
I will say that having to testify in cases where your client is involved can make things hairy and in my opinion should be avoided if at all possible. Should you be forced to testify realize that the therapeutic relationship could be damaged beyond repair. Should your client choose to get treated elsewhere post trial, do not take it personally. Court, in my humble opinion rarely has any real winners.
Stair downs can often occur especially if you are in a case that involves a violent or Axis two individual. How you handle it is a personal preference. I typically will engage in brief eye contact if they are staring at me, keep composed and professional and do not let them become a distraction. This is not the time for a staring contest. Stay calm, stay professional. Don’t be afraid to smile and never be afraid to look in their direction. Trust the safety of the courtroom and in the process.
If I can avoid court I will as I have always felt that clinicians in court should be a last resort.
Warren Corson III (Doc Warren) is a counselor and the clinical & executive director of a community counseling agency in central CT (www.docwarren.org).