FCE – Expert Witness Tips

Nov 01, 2016
Vic Zuccarello, OTR/L, CEAS II
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If you are a clinician or consultant – especially in workers’ compensation cases – someday you will be asked or compelled by subpoena to testify in a deposition. Normally, you will be asked to testify by one side as an expert. I can tell you that the legal arena is challenging – and not in a fun way. You may believe that both sides are merely interested in the truth. If you do, then do so at your own peril. So, if you have never testified, or if you have limited experience, it may be helpful to review some techniques so you have some idea of what to expect.

The “Fact Witness”

If you are testifying as a witness of fact, usually you do so after being compelled to testify by subpoena. In this case, your testimony is fact-based like a witness at an automobile accident. You show up at the venue, are sworn in, and you are asked specific questions by both sides. You provide basic answers related to what you did and the patient’s reactions and statements to what you did. You reiterate your documented conclusions. You are not obligated to provide an opinion. You are paid a state-mandated subpoena fee and mileage regardless of the amount of your professional time required.

The “Expert Witness”

However, if you are asked to testify as an expert, then either the defense attorney or the plaintiff attorney asks you to testify – this is the side that agrees with you. You can charge a “reasonable fee” for your time. In this case you not only provide the basic facts, but you provide opinions based on your professional experience and from the published research that forms the foundation of your evaluation and treatment philosophy.

Tip #1: Protect your credibility.

During your initial conference with the attorney, state that you will form an independent opinion based upon the facts, and that there is a possibility that your opinion will not support his client's case. If the attorney is looking for a "hired gun" you are better off declining the request to appear as an expert. Remember, you are essentially alone – neither attorney is your attorney, advocate, friend, or ally. Both sides want to accomplish one thing and that is to get you to say what they want you to say. So, don’t trust them.

Tip #2: The oldest trick in the book – the “hired gun” question.

Opposing counsel will test you early on by asking, “So, how much are you being paid for your testimony today?” Smack this question with a hammer by stating, “I’m not being paid for my testimony, I’m being paid for my professional time.” This will communicate a message right away that you are not a fool. After all, everyone in the deposition room is making money so don’t feel embarrassed by admitting that you are as well.

Tip #3: Be aware of land mines.

Review your file before the deposition. Look for typos or mistakes. Opposing counsel has them highlighted and will ask about them. On the date of the deposition, when questions get around to these sections, state, “In this section, I made a typographical error. I really meant to say _____.”

Tip #4: Only answer the question that was asked.

After you have provided enough information to answer the specific question that you were asked, shut up. Even if opposing counsel sits silently and seems to expect you to say more, don't fall into that trap. If opposing counsel wants more information, he will ask a follow-up question. Get used to the silence even if it makes you uncomfortable -- it is not your job to fill silence.

Tip #5: Think before you answer questions.

Whether on direct examination or cross-examination, think before you speak. It is almost always better for there to be a short pause before you answer a question than for you to give a bad answer. I try to wait for 3 seconds after each question. Even though some questions are rather easy, try to maintain the same tempo. The other side will look for inconsistencies in tempo (longer v. shorter pauses) and pursue those avenues with longer pauses as your potential weak areas. Also, if you are answering and are interrupted by the other side then say so and state on the record that you were interrupted and would like to finish your answer.

Tip #6: Watch out for "hypothetical questions".

Opposing counsel may ask you to assume facts, and explain how your opinion would change if those facts were true. Do not assume that the facts are true -- the attorney may be trying to confuse you, or make you doubt your findings. Simply state that those hypotheticals were not at play in this case and it is useless to speculate on them. One really old trick is for opposing counsel to preface several questions with, “Isn’t it possible……” Stick with the facts. Answer those questions with, “Within a reasonable degree of professional certainty, in this case the data and observations indicate…..”

Tip #7: It is okay to answer, "It depends" or “I don’t know”.

The attorney opposing your opinion will fight to prevent you from providing context to your answer – building a foundation. They will try to make you believe that you can only answer with a “yes” or “no”. In fact, it really doesn’t work that way. Human experience is contextual and there is often more than one part to a question in the world of healthcare. If the opposing counsel interrupts you or objects to context, simply state that the question cannot be answered with a simple “yes or no”. Usually, you will then be allowed to follow with context.

If you don’t know the answer to a question, don’t speculate. Just say that you don’t know. If you don't understand a question, ask for it to be repeated. You cannot help your client by answering a question that you do not understand or one for which you don’t have the answer.

Tip #8: Be careful With "Terms of Art".

Most professions use common words to mean something other than what a layperson would understand the word to be. Make sure that the client law firm understands the “terms of art” that you may be using as you explain your case. Terms like “Symptom Magnification” or “Non-organic” may be misunderstood to mean “Faking” when that is really a false equivalency. Be alert for possible confusion, and be prepared to explain any terms of art that you use during testimony rather than creating a possible ambiguity. After stating the term, quickly define it, “Non-organic, meaning the expression of pain does not follow accepted scientific principles.”

Tip #9: Listen for "set-up" questions.

If opposing counsel asks you a question that mischaracterizes what you are saying, correct him immediately in your answer. For example, opposing counsel may ask, “So, Mr. Smith could only lift 20 lbs……”. If Mr. Smith provided poor effort and the data reflected that he/she could have done more, state, “Well Mr. Smith would only lift 20 lbs, and should have been able to lift more.” If you are not careful, you risk making a damaging concession and this will later be used against you. “Well just a minute, sir. Earlier you stated that Mr. Smith could only lift 20 lbs and now you are stating…”

Tip #10: You don’t have to accept being abused.

If opposing counsel is yelling at you or pointing his finger at you or continuously interrupting you, state on the record, “Sir, your continual ________ is making me feel rather uncomfortable and I would appreciate it greatly if you would cease this behavior.”

Hopefully, these tips are helpful. There are dozens more, but the bottom line is that you have to learn as you go. Experience is golden and you will not do well the first or second time. But in time, you will be a better deponent. Tell the truth and the rest takes care of itself.

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