Take the Terror out of Testifying as an Expert Witness

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Dr. Kathleen Ashton and Mindy Cohen answered these questions and more:

• What is the difference between an expert fact witness and a liability expert witness?
• What other kinds of opinion-based nursing expert witnesses are there?
• Can nurses testify about causation?
• What should and should not be on a curriculum vitae?
• Should an expert have more than one CV?
• Should experts list their cases or their clients on their CVs?
• Should they identify the fact that they are experts on their CVs?
• Can experts be asked for a list of cases in which they have testified?
• What is appropriate attire at a deposition or trial?
• How does the video camera change the perception of the expert’s weight?
• Why should dangling earrings be avoided when you are testifying?
• What is one item of apparel that women should always take to the courthouse?
• Why are dark clothes preferable over lighter ones in front of the camera?
• What should you look at when you are being videotaped?
• Where should your hands be when you are being videotaped?
• How does the purpose of a deposition differ from a trial?
• What are some tips on how to respond to cross examination?
• What are some specific concerns experts have about getting ready for a deposition or trial?
• Can you identify some things that the expert needs to be aware of related to jurors?
• How do you respond when the opposing attorney incorrectly rephrases what you said?
• How does assertiveness influence how you respond to repetitive questions?
• Why is it crucial to listen to the question?
• What do you do if the opposing attorney asks you questions about facts in the case and those facts are just not correct?
• How do you handle it when the opposing counsel implies the doctor knows more than the nurse about a particular aspect of care?
• How do you handle discrepancies between what the record says and the patient says happened?
• Why is it so important to understand the weaknesses of the case?
• What can you do during a deposition if the attorney asks you to find something in a voluminous file?
• Do you have any other suggestions for how to handle what to do when the attorney is asking you a question and you don’t know the answer to that question?
• Why is organization of the file so important?
• What are some of the trigger points that get experts uncomfortable when they’re being cross examined particularly at trial?
• Are there any common tactics that you have run into as an expert?
• How should you respond to leading questions?
• What are the options for handling a hypothetical question?
• How should you handle “yes” or “no” questions?
• What are the key things that are important when you’re getting ready to give testimony?

Kathleen C. Ashton, PhD, APRN, BC is a Professor of Nursing in the School of Nursing at Thomas Jefferson University in Philadelphia, Pennsylvania. As a legal nurse consultant, she has served as an expert witness reviewing legal cases for plaintiff and defense firms for over twelve years. Currently, she serves as a reviewer for three nursing journals and as a board member for several community and professional groups. Her research interest is in the area of women and heart disease. She has conducted many funded research studies and written numerous grant applications to support her program of research.
 

Mindy Cohen, MSN, RN, LNCC is the President and owner of the Villanova, PA legal nurse consulting firm of Mindy Cohen & Associates, Inc., in operation since 1995. Her firm offers behind the scenes consulting and expert witness services for the plaintiff and the defense. She is the Past President of the American Association of Legal Nurse Consultants and holds her LNCC. Mindy has more than 25 years of diverse nursing experience in the hospital, home care and rehabilitation settings. She has been a staff nurse and administrator in all three arenas and has taught nursing students at two Philadelphia area universities.

Moderator: Patricia Iyer, who has 22 years of experience reviewing cases as an expert or expert fact witness.

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Extracted from Working with Expert Witnesses by Michael Zerres Esq and Patricia Iyer MNS RN LNCC, in Patricia Iyer and Barbara Levin (Editors) Nursing Malpractice, Third Edition.

A meeting before a deposition is advisable for preparing the expert. This serves several purposes: meeting the expert, discussing issues and developments, reviewing strategies, and describing opposing counsel. This session is often the attorney’s first opportunity to meet the expert. The attorney has a chance to determine:

• Does the expert have jury appeal? (In the terms of one attorney, “Does the expert have a good ‘court face’?”)
• Is the expert able to speak in layman’s terms?
• Can the expert speak with spirit and conviction?
• Can the expert think quickly and extemporize?
• Can the expert follow a hypothetical question and respond in a meaningful manner?

Part of the preparation of the expert witness, especially the neophyte, is defining who is likely to be present at the deposition, especially the identities of the other attorneys. The expert should be advised that one of the purposes of the deposition is to size up the expert, and that opposing counsel is taking the expert’s deposition to learn every opinion he has and the factual basis for each opinion. The information is used to attempt to discredit the opinion by discovering bias or prejudice. The expert is expected to commit to statements under oath that can be used later as sound bites at trial.

Experts may ask about the style of opposing counsel. Understanding the personality and level of experience of the opposing counsel is useful to the expert. Some styles likely to be used include:

• Broken record: Repeats the questions multiple times in order to induce the expert to provide inconsistent answers to the same question, or, to get the expert to answer a question favorably to the questioning attorney, when the expert’s first answer is not favorable;
• Bully: Attempts to browbeat or intimidate the expert into answering questions favorably to the attorney's interests;
• Simple country boy: Tries to charm the expert into favorable answers by appearing simple, humble and down to earth, projecting a desire to obtain only "honest" answers;
• Hurt puppy: Acts disappointed by the expert’s answers, hoping the expert will want to please the attorney by providing different (and more favorable) answers;
• Good ole boy: Insincerely attempts to charm the expert by coming across as his or her "buddy," believing that "you can catch more flies with honey than vinegar";
• Jumper: Quickly and frequently changes the pace and subject matter to keep the expert from anticipating the next series of questions and/or to obtain inconsistent answers to the same questions asked more than once at different points throughout the course of the deposition.

Read more about Nursing Malpractice.