Most listeners, including jurors, have trouble synthesizing disconnected facts into an understandable form. Throughout history, however, the story has proven capable of seizing both imagination and memory.

In a malpractice case such as the current example the core story might be something like, “Here is a good, well-meaning doctor who made one mistake in this case.” Note the interesting point that this core story in its raw form would serve equally well for plaintiff or defense, depending on later emphases and details.

These might be other core stories in other cases:

Juries appear to be able to visualize classic story forms with clearly defined villains and heroes. Some care is required, however, to prevent so polarized a story from seeming to impair objectivity. Moreover, life rarely breaks down so simply. The point here is not to wax judgmental (itself a threat to objectivity) but to identify the person, thing, or event that fits the role of perpetrator or occasion for the case, as it were.

Still, identifying the “bad guy” may function simply as an aid in telling the core story of the case.

In the psychiatric context, both in civil and criminal issues, the “bad guy” may be the illness itself.

Expert witnesses should insist on meeting with their retaining attorneys before deposition or trial to plan their approach. Such a meeting must be distinguished from attorney coaching, discussed later in this volume. Because the deposition will usually be taken by the opposing attorney, and thus will consist structurally of cross examination, that topic is covered later under that rubric. For trial, however, attorney and expert should plan the expected direct examination together.

Experts agree that the most boring part of direct testimony is expert qualifications, although going through it is a technical necessity, both to achieve the witness’s acceptance by the court as an expert and to allow for various challenges such as voir dire from the other side. Most jurors neither know nor care about board certifications, awards, publications in professional journals, and other core elements of the qualification process; however, this can occasionally be an important phase of educating a judge and a jury on qualifications for opinions that will later be rendered during testimony. The expert and attorney should negotiate how best to present this segment of direct to avoid the dreaded qualifications ennui. The expert’s curriculum vitae (CV) is commonly made an exhibit for the trial, but in some cases the CV can be duplicated and literally handed out to each juror. Although this is rare, it would permit the jury not only to get a sense of expert qualifications during the actual trial but to take the CV back with them to deliberations, where it can be considered at length. Handing out an expert’s CV does pose the risk that the jury, eager for some variation from the talking heads they have been hearing, will become engrossed in reading the CV right there in the courtroom instead of listening to the testimony. One can speed things up by several techniques.

In those jurisdictions where handing out the CV is not permitted, or if there is a sustained objection from the other side, efforts should be
made to create summaries or condensed versions. Here is one real-life example.

Because juries barely grasp even the concept of board certification, intoning a meaningless litany of “I won the Smith award, the Jones award, the Wilson award, etc.” would rapidly induce somnolence in the jury. The expert witness should always keep in mind that jurors are, much of the time, involuntarily present and paid a pittance for their time, whereas—as the jury clearly understands—both attorneys and experts are paid much more. Therefore, any overt efforts to save time and improve efficiency are usually viewed favorably. On the other hand, the previous summary, although time saving, may sound off-puttingly egocentric.

As further discussed in Section III on cross-examination as “stealing thunder,” weaknesses in the expert’s background, in this case or elsewhere, are always better discussed in direct, where they may be clearly addressed without the willful distortions of cross, placed in perspective, thoroughly analyzed, and drained of their potential conceptual poison.

Because the expert will be providing the essential content of the direct examination, the sequence and pacing should be arranged to permit the witness to feel comfortable with how the story unfolds. Before elaborating on this point, note that attorneys may resist this effort for a variety of reasons, including narcissism, lack of trust in the expert, or feeling intruded on by the expert’s suggestions. Here are two real-life examples.

The exact dynamics here were not fully clear—perhaps a foolish hope that a plaintiff’s theory would imprint itself on the witness’s mind or that the witness would slavishly and venally follow that lead—but the bottom line was that the expensive and probably valid consultation that had just been given was brushed aside as though it had never happened. The expert ultimately testified only on a single narrow valid point in the case; however, simply turning down the case would have been defensible.

Assuming that the previous barriers are not present, how should the expert aid the attorney in crafting direct?

One of the most important points to keep in mind as a touchstone in crafting direct is to design questions together that can inspire answers at the level of “reasonable medical certainty.” Attorney and expert labor to find phrasing that will allow answers at that level, as in this mock dialogue.

As noted, when it comes to the negative aspects or weaknesses of the case from the side retaining the expert (and it is a rare case that has none of those), attorney and expert should plan to address those as much as possible during the direct examination. For example, in a malpractice case hinging on pharmacology:

As discussed later in the section of cross examination, not only should the various factual weaknesses in the case be discussed on direct but also those aspects of the expert’s history or role should also come first during direct.

One can readily anticipate that the cross-examining attorney would ask only the first question, hear the answer, and then move on to something else, perhaps after a pregnant pause designed to let the jury draw the conclusion that the witness is not current on these matters or, even worse, has been dragged out of retirement to give an antiquated and outdated opinion. On direct, one can give the complete picture at leisure.

These examples can only illustrate in a general fashion the considerations involved in crafting the direct examination with the retaining attorney. The rest of this skill comes from experience and the variations on cases that may emerge. Some amount of practice is also useful, as the next section illustrates.

It is perfectly appropriate for the retaining attorney and expert to practice the direct examination if desired; this may take various forms. Some attorneys suggest videotaping mock direct examination and viewing the recording together with the expert or with other members of the law firm available for critiques. Like the sometimes-dismaying experience of hearing one’s own voice on a recording for the first time, seeing oneself thus may be disconcerting but may allow for improving one’s delivery. Yet the effort is always worthwhile, because juries are often influenced as to the witness’s credibility by the demeanor and presenting style of the witness, over and above the actual factual content of the testimony.

Of course, novice experts may wish to videotape themselves privately as a form of practice. For example, a novice expert may wish to tape himself or herself answering such broad questions as: “Please tell the jury what is meant by borderline personality disorder” or “What is meant by the term suicidality?” On reviewing the recording, the expert is advised to listen for jargon, excessively high levels of vocabulary, overly tortuous sentence structure, tones of condescension, and other problematic aspects of the testimony. Experts often comment that one of the hardest parts of testimony in court to a jury is keeping the communication simple without appearing to be keeping the communication simple. A relaxed and natural style—even if, paradoxically, the result of practice—is the desideratum here. Of course, when presenting to a judge, more advanced vocabulary and sentence structure are appropriate.

Demonstrative evidence refers to exhibits in the form of pictures, charts, graphs, models, and similar concrete items that are used to clarify hard-to-visualize points for the jury; an example would be a scale model of an intersection where an auto accident occurred. The expert witness can be helpful in the preparation of direct examination by suggesting or designing helpful lists and charts that illustrate something significant in the case. In psychiatry, blow-ups of medical chart pages or pages from the Diagnostic and Statistical Manuals are such common exhibits.

There is a cost-benefit decision to be made here. A prepared exhibit looks overtly prepared; jurors may be divided on whether this is clarifying or whether it seems to represent an attempt to sell them something. There are advantages to the expert’s getting off the witness stand and drawing or listing something on the blackboard, flip chart, or dry-erase panel that has been brought to court. First, it gives the jury a break from the talking heads routine; second, it has an interesting spontaneity. At a deeper level, by picking up the chalk or marker and standing before the board, the expert steps into the teacher role, one of the most powerful transference figures in society: The teacher knows the answer (1).

With this power comes the responsibility to practice this demonstration. Everyone recalls the bad habits of poor lecturers. Few things turn off a jury more rapidly than the witness who writes with letters too tiny to read, mumbles into the board, or draws incomprehensible lines and circles without clear explanation. This presentation should be rehearsed, possibly in the lawyer’s office, with the expert first writing the material in large letters and then turning completely away from the board and pitching the voice to the back of the room. Just as with selected metaphors and analogies discussed later, choosing vivid, evocative, or persuasive listings or diagrams may be especially helpful.

In the actual trial, a useful approach is first to ask the jury, while you are standing in front of the board, if they can hear you in the far seats; this is necessary because there may be no available microphone nearby, and the courtroom acoustics may not be tailored to pick up voices from any place other than the stand. If you get shaken heads, talk louder. Remember the maxim, “In the entire history of jurisprudence, no expert ever spoke too clearly or audibly to the jury.”

Then write the first few letters on the board, turn to the jury and ask the jurors at the far end or back of the box if they can read them. If they say “yes,” write the rest of the letters the same size, carefully and clearly; take your time. Most juries do not like to say “no” easily, so if they say nothing, take it as a “no,” erase the letters, write larger, and ask again. Then remember to keep your voice at the higher volume you have tested out.

This issue is discussed at greater length later, but note that a new threshold has been set up for admissibility based on the Daubert case (see later). The expert should prepare with the retaining attorney to discuss the methodology used to reach the opinion and to back up the science involved in the opinion with data from the peer-reviewed literature, from standard sources and texts, and the like.

The matter of truth goes beyond being under oath, which is assumed and omnipresent in the American legal system. Taking the oath implies that one can only state what one can swear to, not what one thinks, believes, or assumes (2). Manifestly one swears to tell the truth, that is, eschewing falsehood; the whole truth, eschewing omission of vital elements of the truth; and nothing but the truth, that is, the truth divested of distracting detail or filler that would serve as diluent. However, the matter is not quite so simple.

The first element is fairly straightforward; do not lie. However, under this rubric is subsumed the obligation to admit or concede those limits of your opinion or those actual or potential exceptions to your reasoning. One of the hardest tasks for the novice is admitting a weakness in that side of the case on cross. However, such admission is essential for both practicing ethical conduct and achieving credibility.

The second element—the “whole truth”—is inherently problematic and requires some discussion. On the one hand, this element of the oath demands the inclusion of relevant context to assess the meaning of some behaviors. This need for context is particularly important in cases involving alleged boundary problems, where context is often the essential determinant whether the behavior in question was a boundary violation that exploited the patient. Here is an extreme example.

On the other hand, despite the value of including context in one’s opinion, there are several factors that create a tension between the whole truth and the admissible truth, a distinctly smaller universe of discourse. Experts must recall that, by accepting a position in the legal system, they are agreeing to operate by those rules; thus, the admissible truth represents the database in question. The subject is discussed in Chapter 4. Here, let us simply note that many decisions and motions behind the scenes may constrain what the witness can say or talk about in court; these constraints should be thoroughly understood before trial.

Finally, as noted previously, the truth that is stated must be at the level of “reasonable medical certainty.”

The expert’s opinion represents the final conclusion of a process including review of the facts of the case and literature review and training and personal
experience brought to bear on the forensic question at issue. Support for that opinion may further derive from two forms of testing relevant to the discussion here: testing aimed at support of the clinical validity of the opinion and testing aimed at the evidentiary validity of the opinion (2).

The first category includes some familiar procedures aimed at increasing the precision of diagnosis and assessment. The first is the mental status examination performed during the clinical interview or independent medical examination. In a number of civil and criminal contexts, moreover, past mental status examinations as recorded in medical records may play a role in the evaluation.

In a number of forms of litigation both psychological testing and in some instances neuropsychological testing are becoming increasingly important in providing additional support for clinical opinions. Their standardized structure and demonstrated reliability provide useful corroboration for more intuitive and subjective clinical impressions, no matter how sound. In a predictable accompaniment of these trends, an entire school of approaches to effective cross examination and challenge of those testing mechanisms has also sprung up. Efforts are sometimes made to characterize psychological testing as some sort of extraordinary and invasive procedure similar to the surgical removal of key organs; rational responses to such claims usually suffice in those cases. Because psychiatry suffers from a relative dearth of standard laboratory procedures compared with general medicine, such testing plays an important role.

The second dimension of testing, this one aimed at evidentiary validity, emerged from the legal system itself in an apparent effort to deal with judicial fears that so-called junk science—idiosyncratic, unsupported, artificial, and unreliable pseudo-science—would be admitted into the courtroom and would inflame, prejudice, or mislead the jury. The critically important 1993 decision by the United States Supreme Court in Daubert v Merrell Dow (3) attempted to address those fears by invoking a screening mechanism for expert testimony; details are not addressed here but may be found elsewhere (4).

In summary, the case held that trial judges should decide what scientific evidence (such as that provided by expert witnesses in all specialties) might appropriately be admitted into court proceedings. This screening role for trial judges is termed their “gate keeper function.” The criteria used in this determination were whether the evidence had sufficient relevance to the matter at hand, whether the scientific approach was based on methodologies sufficiently reliable to be considered meritorious, and finally whether it was sufficiently helpful to the trier of fact in understanding a fact or conclusion in the case.

This last idea derives from Federal Rule of Evidence 702, which provides a formal definition of the expert role as follows:

One practical result of this ruling is that modern trials (and occasional appeals) may include an additional procedure entitled a “Daubert hearing.” This hearing constitutes a forum where the validity of an expert’s proposed testimony and the underlying methodology may be challenged or affirmed. The overt purpose of such hearings is to filter out testimony deemed to be unacceptable for admissibility according to the previous criteria of relevance and scientific reliability. Support for the latter is derived from testing, including the testing noted previously, from peer review and publication in mainstream journals, potential error rates, and other forms of scientific support.

Of course, many areas of clinical work lack the clear reliability and experimental development of error rates that are characteristic of laboratory sciences; simple clinical experience is nearly impossible to quantify in some meaningful way. Some light on this point was shed by a successor case to Daubert, namely, Kumho Tire v Carmichael (5) in 1999.

Contemporary experts now speak of “Daubert-proofing” their opinions and should prepare to discuss this area in anticipation of questions.

In the Kumho case described previously the following comment appears:

The Latin phrase means “he said [it] himself,” with the implication that the conclusory opinion being given by the expert in that instance is essentially unsupported except for the expert’s claiming: “It is so because I say it is so.” That is, the opinion lacks articulation of the underlying methodology and reasoning that led to the final opinion.