“ONCE YOU START TALKING: TELL THE TRUTH;
WHATEVER YOU DO, DON'T LIE. TRYING TO REMEMBER A FABRICATED, COMPLICATED
LIE IS IN IMPOSSIBLE TASK. EVEN IS YOU ARE A CONVINCING LIAR AND YOU CAN KEEP
YOUR STORY STRAIGHT (WHICH I CANNOT- EVEN MY 6 YEAR OLD SON KNOWS WHEN I TRY
TO LIE TO HIM), DON'T LIE. SOMEONE WILL FIND YOU OUT. ESPECIALLY TLWDLY, (THE LAWYER WHO DOESN’T LIKE YOU) BECAUSE HE/SHE IS TRAINED TO LOOK OUT FOR LIARS. . . THE FIRST AND GREATEST COMMANDMENT IS THE ONE WHICH, WHEN BROKEN, WILL HAVE YOU BANISHED TO THE OUTERMOST PLACES FOR THE REST OF YOUR DAYS. YOU SEE, THE PEOPLE WHO ARE JUDGING WHAT YOU SAY MUST LISTEN TO ALL THAT YOU SAY. AND IF THEY THINK THAT YOU HAVE WILLFULLY TESTIFIED TO ANY MATERIAL FACT, THEN EVERYTHING YOU SAY CAN BE DISREGARDED. WHERE WILL YOU GET CAUGHT SHADING THE TRUTH? THERE ARE LOTS OF PLACES, BUT A COMMON PLACE IS IN FAILING TO ORDER A CERTAIN TEST OR DO A SPECIFIC EXAMINATION. DON'T SHADE THE TRUTH. IF YOU DIDN'T DO A CERTAIN TEST, SAY SO, AND SAY WHY YOU DIDN'T EXPLAIN WHY IT WAS NOT NECESSARY TO ORDER IT;”
DR. CHARLES SMITH: LECTURE TO ANESTHESIOLOGY STUDENTS: “ SEE YOU IN COURT (THE INVITATION YOU CAN’T REFUSE); WITH INSTRUCTIONS ON HOW TO PASS YOUR ROYAL COLLEGE ORALS AT THE SAME TIME.”
AN EXHIBIT FILED AT THE GOUDGE INQUIRY;
“I am granted by you an audience; for this, I am honoured."
Over the next minutes, I will discuss how to get into trouble, how to handle trouble to avoid court, what to do before you go to court, and how to communicate both verbally and non-verbally in court.
While this information is directed at the courtroom experience, I should also tell you that I am an examiner for the Royal College of Physicians. And many of the techniques used in court will also save your neck when you are sitting your Royal College oral examinations.
You will remember this advice when you're involved in:
1. Being sued
All too often, the first warning that legal action is being undertaken, is the arrival of a Notice of Writ. Most legal actions are not unexpected. For anesthesiologists (and indeed many others), the unexpected legal action often comes in the form of a shotgun lawsuit which implicates all the physicians involved with a patient. I am not going to direct attention about specific problems or legal risks related to vour specialty - you know them better than I. But as a pediatric pathologist who gets involved in the determination of cases of birth asphyxia, I note that, according to lawyers retained by the CMPA (Canadian Medical Protection Association), one of the recurring problems is that of resuscitation of the asphyxiated newborn. The plan is simple: if a parent has an asphyxiated baby, then it is either the 'fault' of the obstetrician who delivered the baby or the anesthesiologist who attended the resuscitation. So if you are in community practice, be very familiar with the resuscitation of the flat newborn, and remember to document your involvement carefully. Being involved in the litigation process is very unpleasant. It is painful to remember the event which led to the suit. It is painful to discuss it. .It is painful to write it down. And it is even more painful to recall it in detail, in an adversarial environment. Because it can be expensive to launch a lawsuit and pay for a lawyer to retain expert witnesses, there are two other avenues which people (or their lawyers) are using to obtain information of value in a lawsuit ...
2. Complaints to the College of Physicians and Surgeons of Ontario The first is a complaint to the CPSO. It doesn't cost much to launch a complaint against you (a 42 cent stamp will suffice). And the College will require a written response from you, and other supporting documentation, all of which is shared with the complainant
3. A Coroner's Inquest;
If there has been a lethal outcome to a medical act, then the family can push for an inquest. Remember that an inquest jury cannot apportion blame or determine negligence. Nevertheless, the inquest has been used as a place where a complainant’s lawyer can go fishing for culpatory information. Therefore, when you are invited to an inquest, you should consider your role carefully, and if in doubt, contact the CMPA prior to discussing the case with others.
4. Real things
Real criminal things don't often involve members of your specialty, except in situations where you are involved in the resuscitation of an injured person. (If you're involved in real criminal things, you shouldn't be sitting here, you
should be out hiring a good lawyer.)
All of these court actions are stressful. And many people will tell you that they can be as stressful as sitting your oral examinations for the Royal College. There is one fundamental difference: in a Royal College exam, the examiners all want you to pass, but in court, at least one of the people examining you wants you to fail!
Remember that in these situations, you may not simply be trying to convince a lawyer or a judge. There are juries. White juries are common in medical malpractice lawsuits in the US, that has not been the Canadian experience; However, the first one did occur several years ago in Canada (on an orthopedic case dealing with a complication. of a plaster cast, here in Toronto). Following the instruction of the former Chief Justice Dickenson, that negligence must not be assessed just because a defendant has enough money to compensate a person who has been injured, but must be assessed based on blame. Many expect juries to become more commonplace, as lawyers worktowards getting larger settlements.
Being a litigang (sic)t;
Being sued is a painful experience that you will remember for the rest of your life. Being a litigang (sic) causes you to remember that painful episode, and none of us like doing that. Furthermore, you must remember it in detail, and you end up recalling it in agonizing detail in an adversarial environment. It is important that, when you are in trouble, you relinquish the 'take control' attitude that you were taught, and seek help.
When you're in trouble:
1. Don't fix it yourself. You've lost objectivity
The Upper Canada Law Society encounters a phenomenon which is well known to the Canadian Medical Protective Association. It is very common for young practitioners, when they are getting into a sticky situation, to rely solely on their own abilities to dig them out. And that does not work. A person is too dose to the problem to have an objective perspective, and thus is not in the best position to solve a problem. It is in this stage, that people start to falsify records. Don't. Furthermore, it is at this stage that a cover-up may begin. And when it involves a patient, attempting a cover-up may serve to make the situation worse: instead of proper patient management being instituted or a healing process beginning, the cover-up may allow a problem to worsen.
2. Remember you are not invincible
Somehow, the professions teach us that we are to be infallible. And when we fall, we don't know how to land without getting hurt.
3. Confess your sins early. Shift the burden.
Talk to an elder: The .gray-haired elder will have a reasoned, rational perspective. (And part of their reason for having gray hair, is that they have gone through the same baptism of fire.) As well, the grey-haired elder will be able to assess whether the patient needs medical help (i.e., that the underlying
disease or its complications are not being ignored).
4. Write a narrative.
It is no fun to relive a difficult situation, but it is important to document it.
A contemporaneous analysis is very important. In that analysis, don't re-invent the story. Simply record what happened. Because the law recognizes the privileges of the solicitor -client relationship, a narrative can be used to protect you only, and not to hurt you, if you protect it from prying eyes. You do this be heading it, "For advice of counsel only". Your verbal recollection of events in the past is of little value, should someone else have a written account of what happened, even if that written account if wrong. For that reason, a contemporaneous account is important. One Toronto judge put it in a nutshell, "I am less interested in the truth, than in the proof." If you have not carefully recorded what you have done, you cannot prove that your independent, verbal recollections are true.
5. Don't cover up. Remember what it did to Watergate
Cardinal rule to staying out of trouble: Write down what you do. Whenever you are involved in any situation that could possibly spark the interest of a lawyer, write it down. Either write a narrative, explanatory note in the chart, or dictate a note. Whatever you do, write it down. I cannot emphasize this enough ... writing down what has happened will never get you in trouble, but failing to record it, is a certain way to end up in a difficult situation. You might think that a complete anesthetic record is all you need to protect yourself, and in theory it should be. But the dynamics of what happens in the OR or in the PAR is beyond the structure or the morphology of the anesthetic record. To make it worse, some lawyers have a certain impression about anesthesiologists. Such lawyers think that the squiggles that are put in an anesthetic record might represent fabrications which were minutes, or hours, or even days later. Don't give them any reason to question your actions or record. . . . . .
What does this mean? simple: when there is a death during or immediately after a medical act in which you are involved; write it down; Record it in words, not just in squiggles. Why bother? . It is a bother. But you must understand a fundamental
difference between the medical profession and the legal profession. In medicine, we (usually) work in a collegial atmosphere in which the care of the patient is the ultimate end: And that atmosphere is characterized by a sense of trust along with abundant, open communication., Your word is truth. With lawyers,. it is not so. Lawyers, especially The Lawyer Who Doesn't Like You (TLWDLY) 'work in an adversarial. atmosphere. A sense of trust along with abundant, open communication are unknown to our legal friends. And thus, everything must be written down. The rule is simple: if it is not written down, then it didn't happen.
What does it mean to be an expert?
The most important part of your evidence is the fact that you are a trained expert. You must communicate in such away that the jury is :convinced of your professional status. They need to know that you are: current (i.e., knowledgeable), credible, competent, capable. As soon as you are sworn as a witness, the lawyer who presents you will attempt to have you recognized as an expert witness. Here's why:.
What it means to be an expert:
1. Fact us. Opinion;
The trier of fact (the judge or jury) has to base a decision on fact. However, the understanding or interpretation of fact may be beyond the ability of a lay person, if that fact is of complex technical, scientific or medical nature. Therefore, the law recognizes that a judge or jury can be helped by a person who can interpret facts to them. Thus, your role as an expert witness allows you to make statements of fact and interpretation (or opinion ). It is a significant responsibility, and must not be taken lightly.
2. Not necessarily the leading expert
Being an expert does not mean that you have to be the nation's top dog in a certain area of medicine. If you are a GP, you could be an expert in general practice. If you are an anesthesiologist working in a small city, you can be an expert in the practice of anesthesiology in a community setting. This touches on the issue of practice standards ... In Canada, we use the norm of what another practitioner would do in that setting, whereas in the US, there is a push for universal standards.) I live on a farm, and the farmers who live around me are not the kind of people who understand the swirl and intrigue of courtroom activities. A farmer on a tractor is the farthest thing from an expert witness. Let me tell you about a farmer ... A short while ago, there was a tomato farmer who lost a pile of money when he found himself the target of fraud.: And when it came time for court, his simple, homespun, way of talking wasn't going to go very far in the adversarial, pressure :cooker of the courtroom. But the lawyer who introduced him did a fabulous thing. He started asking him about tomatoes. This chap answered questions for almost half an hour about different kinds of tomatoes, how to grow them and how to harvest them. By. the time the introductory questions were over, this man had a phenomenal level of
credibility with everyone in the courtroom, because they knew that he was good at what he did. . . . , Within the framework of humility, allow the judge (and jury) to see that you are an expert at what you do, and they will listen you.
3. Ethics of this position
You must show that you are ethical. It is only ethics that bind what you do to what you say. Don't ever get to the place where you have to say "I'm the expert. Trust me." The judge and jury won't.
How to be the best expert witness: Be an outstanding teacher; Your role is that of a teacher. The judge wants to learn from you, and the jury wants to learn from you. For a moment, think about the things that you remember in the best teacher you ever had ... You must be an informed, innovative, and entertaining (but not funny). The jury wants information. Teach them, but' don't talk down to them. remember, the legal process treats them like children,. and they are the fall guys for society. Be nice to them by being the best teacher possible. To be credible, the jury must understand what you are saying. If they cannot understand you, they will question your credibility. Hence - Remember the KISS principle. One sign of a good teacher is the ability to take a complex matter and reduce it to simple form. Before going before others, prepare in your mind how you are going to communicate your concepts, and if need be, choose carefully the analogies which you might use. Remember that part of the stimulation of teaching is the ability to field questions from students. How well a teacher answers questions, is the mark of a good teacher. The courtroom is no different. Being a good witness means taking the questions asked of you, and turning them into teaching opportunities.
Before entering court:
I. Prepare your CV
It is imperative that you have prepared a complete and up-to-date CV. You should have provided it to your lawyer beforehand, to ensure that they will bring out the aspects of' your work which are of relevance. Be prepared to be asked some embarrassing questions about your CV, especially y if there appear to be any gaps in time. Do not over inflate your achievements. Start your listing with your econdary education (college or university). Skip high school. Remember to include your teaching activities. For reasons. that I don't understand, judges and juries are. impressed by people who teach others, especially in the professions. Make certain that you are familiar with your publications; and that you know what you have previously written or said as it. relates to the matter at hand. For example, I written a handout for a pathology workshop at the annual meeting' of 'the Canadian Association, pf Pathologists. There were 25 people in the workshop, which was held in Winnipeg. Like all handouts, it was simply an adjunct to a lecture.. Two years later, I was cross-examined on the, document in a courtroom in Timmins. How a lawyer ever got a copy of the 'handout was beyond me. Even worse, he quoted the statements out of context, to show that I was contradicting myself.
2. Know your material
Know your stuff cold (but don't have memorized things such that you recite them word-for-word). If you need support documentation, bring it along with you. It is only a wimp that says, '1 forgot to being my notes."
3. Visual aids.
One of the truisms is, a poor witness with good visual aids is much better than a good witness without. Courtroom psychologists tell US that the order of importance of data given by a jury is: visual (55%), verbal (35%) and vocal (i.e., the tonal qualities) (10%). There are some exceptions, and there are some times that a simple sentence has tremendous impact. Let me give you some examples: The building is on fire." '1 love you!' ' I am pregnant."
CMPA List of how to answer a question: Here is a listing of a litany of five things that the lawyers from McCarthy Tetrault (good people who work for the CMPA) tell their unfortunate clients: 1. Listen to the question If you don't understand the question, ask for it to be reworded. If you get the same wording a second time, tell that the lawyer. Remember that a long question is often an indicator that the lawyer who is asking it, is either in trouble of isn't very good. And if you might have a bit of trouble understanding a long question, the judge/jury will have even more. So get it restated. Ask for it to be simplified.
2. Clarify the assumptions: Before you answer a hypothetical question, make sure you understand all the assumptions that are being made. . . lawyers like to ask hypothetical questions. On television, you will see politicians responding to. journalists by saying, "That’s a hypothetical question." And then the politician doesn't answer it. But in court, when a lawyer asks you a hypothetical you have to answer it. (And what really gets me, is that lots of politicians are lawyers, and' they know that if they were anyone else, they would have to answer the hypothetical!)
3. Answer only that question: (This is especially important in sitting your Royal College examinations. Failure to observe this rule, will get you in trouble faster than you can imagine, as the examiners are looking for areas of weakness.) Most questions can be answered by "Yes/No/I don't know ..." If you must answer a difficult question from opposing counsel in a way that you don't like, you should say something like: "Yes, but let me explain." That sends a signal to the judge (and your lawyer) that if the opposing counsel won't let you answer, then they should return to it.
4. Do not volunteer; Remember that the more you talk, and especially if you start to wander off topic, the more ammunition you are giving to the lawyer who doesn't like you (TLWDLY).
5. Do not speculate; Want to get in trouble fast? Try volunteering this: "Perhaps if I had done such-and-such, the patient wouldn't have suffered any complications."
My list: I would extend the CMPA list of 5 commandments that must never be broken, with five more:
6. Do not answer too quickly: Don't interrupt when the lawyer is asking the question. Listen to it. Then take a breath. If need be, take a moment to think through your answer. If it takes 25 or 30 seconds, don't worry. It allows you to compose a solid answer that will help your position. (This is also invaluable advice for residents sitting Royal College orals.)
7. Do not joke: Lawyers have a sense of humour which is quite different from ours. They don't understand our jokes. Worse, judges are supposed to be impartial, and they ren't supposed to laugh, as it might suggest that they agree with you. If you joke, be prepared to hear Queen Victoria say, We are not amused."
8. Do not answer if told not to; If someone tells you not to speak, then don't. It is either to keep you out of trouble, or to avoid a mistrial.
9. Be silent when counsel are in dialogue It's courteous. And it will give you an idea of what is important.
10. If you make a mistake, correct it quickly: People do make wrong statements by accident, especially in the pressure of the courtroom. If you are talking away, and realize that something you said a few minutes ago was wrong, then correct it immediately. It will show that you are anxious to be as accurate as possible.
You must also pay careful attention to how you communicate non-verbally.
Here are some rules:
1. Dress code: What would anesthesiologists know about dress codes? You people wear
baggy green pajamas all day long! Don't sneer- this is important. Have you read Tom Peters, who has authored 'In Search of Excellence and 'A Passion for Excellence'? He talks about a major American airline which had a credibility problem. In the face of
decreasing passenger miles, they undertook a rider survey. And they found that the passengers didn't think they did a good job on their aircraft. Why? Easy- there were coffee stains on the seat back trays. And any airline that leaves coffee stains on the trays, can't be doing a very good job maintaining their aircraft or running an airline. If you are a doctor, then the public regards you as a 'suit”. Wear one. Your dress code should be appropriate to the community in which you find yourself. Don't show up wearing a yellow checkered suit that looks like it was made from left-over seat cover material off the Dodge Omni assembly line. Look like a doctor, not a used car salesman. Dress very conservatively. I remember a judge who referred to a police officer from the homicide squad as "the man whose suit jacket was unbuttoned when he walked into my court". After I heard that, I began buttoning my jacket. Think about the recent Jeffrey Dahmer trial from Milwaukee. He is the guy who had an unusual way of inviting people for dinner. By anyone's estimate, Dahmer must have been nuts. But the attorney, who prosecuted Dahmer brought in a forensic psychiatrist named Dietz whose job it was to convince the jury that he, was quite sane. And he succeeded. Dietz had instant credibility with the jury because even before he opened his mouth; they noticed that he had short hair and he dressed: in a normal manner (something very foreign in the field of psychiatry.). Avoid wearing-any lapel pin or symbol that represents your favourite political party, religious group, or whatever. Remember that on the CBC National news, the announcer is allowed to wear a poppy for Remembrance Day, but nothing at other times. You might be a right-winger who thinks that the NDP is the worst thing to hit Ontario since Prohibition was proclaimed in May of 1909, but don't wear the lapel pin which' you got when you joined Preston Manning's Reform Party. Remember that some. lawyers: who have been NDP party members are now judges. Jewelry must also be conservative. If you are a man wearing thick gold bracelet, you are sending a message that you are. loaded, and you must have deep pockets capable of big malpractice payouts. Here are the two rules about earrings:
1. You must wear an even number, and
2. Earrings are permissible oily if you happen to have an even number of X
chromosomes. . .
2. Attitude: humility vs. arrogance: The Bible teaches the importance of humility. Nowhere is it more important than in the courtroom. If you begin in humility, you will likely end in success. If you begin in arrogance, you will end in embarrassment. Most surgeons are just plain arrogant Neurosurgeons are different- they are exceedingly arrogant. The most belligerent are the orthopods, who want a good fight ("How could that jerk refer to my care of him? Boy, I'll clobber him in court!"). Don't be belligerent. Physicians are different from surgeons, inasmuch as physicians are more humble. (Except when it comes to courtroom attitude, the lawyers for CMPA, tell me that anesthesiologists are more like surgeons than physicians.)
3. Stifle nervous behaviour: Avoid distracting mannerisms. Don't keep playing with your glasses, or scratching yourself. The judge or jury will begin watching what you do, and ignore what you say. I have a problem, and it's my pocketknife. I always carry one, and I play with it whenever I get bored. It has gotten my in trouble in court, when I have taken it out of my pocket and began opening it up.
4. Use impartial body language. Look at the lawyers: If you walk into a courtroom when a physician is testifying, it is usually a breeze to figure out which lawyer is questioning him- the lawyer who is on his side, or TLWDLY. It is in body language. We look at people who we like, and most of us don't look at the person who is asking us the tough questions. Remember what it was like when your parent was questioning you on something you did (or didn't)? You couldn't bring yourself to look at them, could you? The same happens in a courtroom. It is very hard, to look at the person who is asking tough questions, or is trying to sue, you. .But you can send a clear message to the jury that you are in control, if you are careful. Look the lawyer in the eye. . . Don't cross your arms. . . Don't grit your teeth. ',
Don't put your hands near your mouth: it suggests that you are uncertain or. you are lying. If you have a problem, stick your hands down. and hold to something. You can stick them in your pocket, but 'only if your pockets are empty. If .. there is change or car keys in your pockets, you will start playing with it, and then you will signal your uncertainty. I have known solid, macho physicians break down in tears at an inquest, And even if it was not their reputation on the line. Don't break down. If you feel it coming, turn to the judge and say, ''I need a recess now."
Another important part of body language is your decision to sit or stand. If you can stand, do so. You have a more commanding presence (if only because you are above the lawyers). But realize that standing requires you to stifle all nervous behaviour.
5. Look at the jury. Make eye contact with each one: The jury are the important decision-makers, and don't want to be left out. You need to build rapport with them, and you don't do that unless early on in the game, you are able to establish one-on-one eye contact with each person. You can look at the lawyers when they are asking you a question, but be sure that you look at the jury when you are answering a question. Besides, watching them tells you if you are getting the message across. If, while you are speaking and watching them, and they are watching the flies on the ceiling, you have a problem.
Non-verbal things: Remember that some degree of stage fright is OK" With experience, you will develop your own confident but relaxed style
In addition to the 10 techniques (or commandments) about how to answer
questions, here is another list of 10 commandments for courtroom survival that
I have drawn up:
Once you start talking: I. Tell the truth; Whatever you do, don't lie. Trying to remember a fabricated, complicated lie, is in impossible task. Even is you are a convincing liar and you can keep your story straight (which I cannot- even my 6 year old son knows when I try to lie to him), don't lie. Someone will find you out. Especially TLWDLY, because he/she is trained to look out for liars. The first and greatest commandment is the one which, when broken, will . have you banished to the outermost places for the rest of your days. You see, the people who are judging what you say must listen to all that you say. And if they think that you have willfully testified to any material fact, then everything you say can be disregarded. Where will you get caught shading the truth? ' There are lots of places, but a common place is in failing to order a certain test or do a specific examination. Don't shade the truth. If you didn't do a certain test, say so, and say why you didn't Explain why it was not necessary to order it;
2. If you have changed story, admit-it quickly: What about when your story changes? This is not just lying, but it also includes the situation when you make a different interpretation of 'facts: Let me give you an example. I was involved in a court case in which I had to estimate the time of death, In spite of what you see in the movies, there is no way the pathologist can determine when a person a died, unless the pathologist did the killing (which does happen in Michigan!) At the preliminary hearing, I estimated the time of death using one set of criteria. In Supreme Court, I used a different (and equally useless) method of estimating the time of death. And the results were different. .(Actually, I used three different methods, and they were all lousy.) But I didn't explain what I had done. And so, the defense lawyer used my inconsistency to prove that I was a liar and he suggested to the jury that I changed my story at the request of the police. Corollary: if you have changed your story, then get your lawyer (not the other side) to bring it out. That way you can anticipate and defuse the crisis.And then there are those who think that' if you must lie, lie big. A big lie is easier to believe than a small lie. I did an autopsy on a boy who was-left in the woods and froze to death. His body was rock hard when I did the autopsy. The defense brought in a pathologist from the United States who testified that the boy was likely alive when I did the autopsy. That sounded like a wild story, but the jury believed it!
3. Remember the limits of your expertise: If you start wandering outside the bounds of your expertise, you can get in trouble. TLWDLY might sarcastically ask, 'What else are you an expert in, doctor?" Or TLWDLY might trip you up of a point of fact, and show that you are no expert in this peripheral area, and thus you are not much of an expert in any area. Stick to what you know, and answer peripheral questions only very carefully.
4. Don't be an advocate: Don't get into an argument Don't fence. Watch your tone of voice. .. It is important when speaking not to use a monotone, but to vary the pitch of your voice. But that does not allow you to use a volume or tone that borders on the combative or argumentative. You are not being paid to be an advocate. Lawyers think they make the best advocates, and even when we physicians realize that lawyers aren't very good at being an advocate, remember that the judge is a lawyer. In fact, many opposing. lawyers will try to get into an argument, 'as that is the way of discrediting your 'seemingly impartial nature, and, provides the opportunity for you to make a mistake by letting a remark or piece of information slip out. Don't get into an argument. The quintessence of a good expert witness is a person who provides information in such a way that the jury cannot determine from his/her body language and tone of voice, whether he is being paid by the prosecution or the defense. Here is what to do when you start to get angry. Don't argue. Instead, ask for a bathroom break
5. Watch your language: You are supposed to be a gentleman or a gentlewoman. Make your language match your role. There is absolutely no place in a courtroom for vulgar or profane language. (Nor, for that matter is there any place for such language.) Utter no blasphemy. Do not respond to a difficult question by swearing. For when you invoke the name of your Heavenly Father, the judge and jury. that no mortal man can extract you from the position you have gotten yourself in. Don't make sexist remarks or use sexist language. You might think that it's OK to be a male chauvinist pig. (In fact, I fear that you are probably looking at one, right now.) But there are increasing numbers of women who are wearing judge’s robes, and the trend will continue.
6. Be courteous to all"Be a gentleman or a gentlewoman. Be courteous to all, especially the judge.
7, Make the patient a real person: It is easy to keep referring to a person as 'the patient'. Don't do it. Use the person's name ('Mr. Jones'), rather then referring to them as 'the patient'. Make sure you don't use the term 'it' when referring to a person. It is easy to refer to an infant or a child as 'it'. That hurts your credibility. Remember their sex and refer to them either by 'he' or 'she', or better yet, remember their name. It shows that you are a caring physician..
8. Use statistics carefully. You're making it easier for the other side, Judges and juries know that statisticians are simply big liars with a veneer of espectability. Use statistics carefully, because they can be used against you.
9. Don't use killer words - "I think" "I believe" I guess": These words suggest uncertainty. Don't use them. Stronger phrases are i t is my opinion that or "It is my conclusion that". Notice that the list of killer words does not include, "I don't know." If you don't use it too often, it is not a killer. In court or in the Royal College examinations.
10. Acknowledge your sources: Remember Sirhan Sirhan, the chap who shot Robert Kennedy; Obviously there was no question that Sirhan had pulled the trigger. The defense strategy was that Sirhan was a paranoid schizophrenic who, as a Palestinian, was acting out his hatred for Israel by shooting a Kennedy; The first. Witness for the defense was a shrink who wore a bright green jacket (this was .in the days before they were trendy- mistake number 1): And in his written report, .the shrink used some sentences which define a paranoiac and describe what that meant for Sirhan. But when the district attorney cross-examined the shrink, it was apparent that his sentences were plagiarized from the book “The Mad Bomber” about a nut from New York. Sirhan's defense was destroyed by a green-jacketed shrink who stupid enough to plagiarize. The jury found him guilty, and he was initially sentenced to death. There are some related questions that force you to acknowledge your sources.. . Is you opinion based on judgment or on fact? Be prepared for 'this one. Facts are more important that judgment calls. If you have reached an opinion or come to a conclusion based on judgment, be prepared to acknowledge it. And be prepared to show your reason for that judgment call. Are you relying on input from others? You are in court because some cardiac cripple died after you gave him an anesthetic the issue is the guy's heart disease. You testify about it. However, on cross-examination, it becomes. . Apparent that your pre-op examination was a lot less thorough than the cardiologists, and that' you relied on the consultation report of a cardiologist. Are you, in trouble? Maybe yes, if you start behaving like you-are a cardiologist. Maybe no, if ordinary practice allows you to rely on a cardiologist’s report. Your defense is to show that your reliance on a consultant's report is ordinary in your field or is customary in your field.
Eight keys to cross examination: Lawyers will admit that it is not easy to cross examine an expert witness. It Is not very often that they can attack an expert witness head-on, and win. But Most good lawyers will look for one little thing by which they can turn you into Their witness. They will look for one small point by which they can get you to agree with them. And sometimes it will be a big point. But they are attempting to turn you into their expert witness. Here are some of the other techniques that TLWDLY may use...(McEIhaney, 1989)
1. Counsel wants to "make you mine": An opposing lawyer will look for some area by which he can get you to agree with him. Usually it is a small area, but it may not be. But in some way, he wants you to agree with him. This technique is called 'making the witness mine'. And once he starts to make you his, he may continue to probe or he may sit down and savour the victory.
2. Attack your field of expertise: For example, in the US, pediatric pathology is a recognized subspecialty, but in Canada, it is not (there aren't enough of us). In one instance, when I was being offered to the court as an expert in pediatric pathology, the argument was that it was not a recognized specialty in Canada, and therefore I could not be recognized as an expert in that area.
3. Attack your CV: Looking for gaps. For example, I saw a physician testifying who had left a two-year gap in his CV. When questioned, he indicated that it was time spent in the army. The lawyer said, "Oh, you're not proud of your service?" But
before the physician could reply, the lawyer said, 'You don't have to answer
4. Expose your bias or prejudice: TLWDLY may show that your attitude is unreasonably fixed. A cross examination may be done in such a way that you are lulled into taking a position of absolute certainty. And when you are handed one contra-indication after another, you may continue to hold your position of absolute certainty. Your tenacious adherence to a position can undermine your credibility. In England, there was a megadollar (megapound?) lawsuit against the manufacturers of a certain vaccine, by parents of children who had allegedly suffered permanent brain injuries from their immunizations. And the presiding judge had to listen to a pile of conflicting experts. In deciding which experts to believe, he put great value on the expert who was willing to change his opinion, when additional or contradictory information was given to him.
5. Attack your fact basis:
6. Change facts on hypothetical questions; You must be certain that you understand the assumptions inherent in complex questions. Impeach you with prior statements;
7: Impeach you with your prior statements: If you have written anything or testified in court before, a good lawyer will. have found your statements and will use them to his advantage. Once, I gave a workshop in pediatric forensic pathology to a group of pathologists at a meeting in Winnipeg. With the workshop, I distributed a handout that, like handouts, is a brief overview of the course material. Three years later I was testifying at a murder trial in Northern Ontario, and the defense lawyer not
only had a copy of it, but questioned me at length on it. He tried to suggest
that it was an exhaustive treatise that, because of its brief nature, showed that
there was little science to the area of child abuse, and that I was just guessing.
8.Attack you head-on;
9. Catch 'em off guard! In addition to this published list of 8 keys for cross examination, here's a ninth: TLWDLY may try to impeach you with relevant texts and journals. Remember that any textbook or journal can be used support an opposing
position, and therefore it can be used, to cross-examine. The scenario with TLWDLY goes something like this:
"Q.: Now Doctor Hartley, are you familiar with Professor Ronald Miller's
textbook entitIed "Anesthesia”.
Q. The third edition, printed in 2990?
Q. you recognize it as an authoritative text?
A. Yes." - and then TLWDLY will go on to quote some paragraph and show that it
disagrees with your management of a patient. There is a simple lesson here. Remember that you do not necessarily have to agree with everything that was written in an. authoritative text or journal: (But you must be prepared to disagree with it, and have your own sources.) And if you do not recognize the text or journal article, do not accept what is quoted to you, without first reading it and ensuring that it is not being quoted out of context, or that it is tangential to the matter at hand. If you think you may be caught in this situation, ask the judge for a few minutes to review the material; you may be able to come back into court and indicate why the journal article is irrelevant. . . There is another simple trick that has unfortunately been used successfully in court. That trick consists of duping you into recognizing a work that isn't. Let me give you a scenario. You are feeling a bit worried, and want to be sure that the court knows you are an expert. So TLWDLY stands at his/her desk some feet away, with a pile of texts. And TLWDLY picks up each one, looking at the cover and reading the title to you. Here's how it goes:
Q. Now Doctor Hartley, are you familiar with Pediatric Anesthesia, by
Professor George Gregory of the University of California in San
Q. The second edition?
TLWDLY picks up another text.
Q. And you are familiar with 'Smith's Anesthesia for Infants and Children'
by Professor Mitogama of Pittsburgh?
(Actually, you've only seen it sitting on the shelf in the Department Chief's
Q. The sixth edition?
A. Yes:" (Actually, you don't have a clue how many editions there have been.)
And at that point, TLWDLY walks up with the textbook in his hand, and
shows you the title. It’s 'The Adventures of Huckleberry Finn' by Mark Twain.
There is no sixth edition of Smiths's text on pediatric anesthesia. And at this
point in time, you will wish that you were on board Huck's raft, drifting slowly
down the Mississippi River.
Involve the trier of fact by: There are several steps to winning the trier of fact (judge or jury) to your position. It is generally agreed that the four steps are:
1. Feeling: Your appearance, your manner of speech, your vocabulary, your body
language can make a person get a good feeling for you. To win the trier of fact
(the judge or the jury), you start by causing them to have a good feeling
2. Watching: You will be watched. Your clothes will be studied, your hands will be
watched. Your tone of voice will be assessed. The trier of fact will be looking
for behaviour which supports your words, or which minimizes or contradicts
3. Thinking: Facts follow feelings...Get the trier of fact to think about what you say. When you explain a difficult point, give them an analogy so that they can think about the analogy and then understand your explanation. Don't just give them dry facts. You will get them to think by being a good teacher. And as they think about what you say, they are more likely to agree with you.
4. Doing: If they follow you in their feelings, their observations, and their reasoning, then they will do what you want them to do, which is to agree with you. In an inquest, for example, the jury may return with the recommendation that you
have suggested to them.
A coming question: "How much are you making?" Here's a question that is only beginning to makes ifs appearance in Canada: "How much are you getting paid for this?" If you want a guideline, remember that the CMPA pays an honorarium of about $200 per hour.
What to do when you're done: Leave the courtroom: When you have finished testifying, walk out of the courtroom. (It helps nderscore your air of impartiality.)
Be prepared to be frustrated (you won't be disappointed!) The very nature of the legal process creates frustration within physicians. One reason is that the question process is put in such a rigid order that it makes little sense. That's because one side of the argument goes first, then the other side. And you are not allowed back again. Let me give you a picture. Imagine 6 docs standing around a patient's bed, with the patient's nurse. Three docs on one side of the bed take turns to convince the nurse that the patient has Diagnosis A. Then they are dismissed from the room, while the three does on the other side of the bed all try and convince the nurse that the patient has Diagnosis B. Obviously, the docs supporting Diagnosis A will have some reason to disagree with the docs supporting Diagnosis B. The 'B' boys could be completely off the wall. But the process does not allow the 'A' boys to come
back and explain to the nurse (or the judge) which the B boys are wrong. It’s
frustrating. And so, be prepared to be frustrated.
Be prepared to have your reputation on the line (if not in court, then in a
newspaper!) In medicine, our reputation is very important to us. But in the legal forum, it is fair game to attack a physician's facts, opinions, or reputation. And the attack on your reputation can be very insidious, such that you are not easily able to defend it. Believe me, it can be very depressing to read the Toronto Star (or worse, the Toronto Sun) and discover how dumb you are.
"I am honoured by the audience which you gave me."
McElhaney, J. W. (1989)
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