Harriett Smalls Harriett Twiggs Smalls, BSN, NNP-BC, JD

This blog post is a re-posted article from Neonatal Network®, Volume 32, Number 2.  Full sample downloads of this journal are available here.

Neonatal NetworkExpert witnesses are used to help the parties and the trier of fact (judge/jury) understand technical facts relating to the expert’s particular specialty or area of expertise. In the case of a neonatal nurse or advanced practice nurse, it could include opinions about the care provided to seriously ill infants, newborns, or resuscitation efforts at birth. Sometimes you may be both a fact witness and an expert witness. This may happen when you are asked questions that relate to what you do and how the subject did things and then are asked to give an opinion as an expert. Outside of having practiced for years in your field, there is no special or additional training required. However, some nurses do take courses to help them understand the legal issues, how to organize/review a case, and how to be a more effective witness.

Let it be known that you are available to review cases. Send your resume to law firms with a good cover letter summarizing your expertise. Also, try sending information to or contacting colleagues who are already serving as experts. It is not easy to get started, but, once you have proven yourself, the word will get around.

Being an expert witness can be time consuming and stressful, and it can also be a rewarding experience and a nice supplement to your income. Should you decide to pursue this route, you can save yourself a lot of time and headache by considering the following suggestions.

INITIAL CONTACT AND PREPARATION

First, when you are initially contacted by an attorney, find out which side the attorney represents and determine if you have any conflicts. You want to protect your credibility, and you can do that by maintaining a balance between representation of plaintiffs and defendants. You also do not want to look like or become a hired gun. It is best to be honest with the attorney if there are problems with the case up-front rather than just telling the attorney what he or she wants to hear. Be clear with the attorney that you will form an independent opinion based on the facts. Also, find out what you are being asked to do: Are you to testify as to causation (Did the actions or nonactions of the subject lead to the injury of the plaintiff?) or on the standard of care (Did the subject act as a nurse similarly trained in similar circumstances would have acted?).

Second, provide a fee schedule that includes your fees for reviewing the case, testifying at deposition and at trial, and any other expenses. Because some experts have found it difficult to collect their fees, ask for a retainer for your services. Include the rate of compensation and any other terms in a written agreement. What you decide to charge should be dependent on several factors: experience and reputation in your field, specialty, and past experience as a witness. Talk with others who have served as experts to get a sense of what a reasonable fee would be.

Third, make sure your credentials are in order. Update and check your resume for accuracy and completeness. Maintain a list of any articles you have published or book chapters you have authored in your field. You will also need to keep a list of cases in which you testify. Keep copies of your publications and your testimony. You may be challenged on your writings and testimony, and you want the attorney you are testifying for to be aware of what’s out there that may pose a problem, particularly if your position changes over time.

Finally, be prepared. Review the case more than once. The better you know the case, the easier it is to answer questions that you were not expecting. Taking notes while you review the case is useful to help you organize and synthesize the information. However, your notes are discoverable by the opposing side. Therefore, be careful to keep the notes neutral; don’t include your opinions or thoughts that you cannot explain or that may be damaging. On the other hand, do not purge your file to remove damaging documents. If you are asked to prepare a written report, do so in an organized, readable way leaving out, if possible, medical jargon. You will likely meet with the attorney prior to your deposition and prior to testifying at trial. The attorney should not try to spoon-feed you your testimony. You should, however, come away with some understanding of what you will be testifying about, how you can best express what it is you have to say, and a sense of what you will likely be asked by not just the opposing attorney but also the attorney with whom you are working.

TESTIFYING

A deposition is a little less formal than a trial but no less serious. It is here that the opposing counsel will learn about your opinions, get information about the case, and evaluate your credibility.

Dress professionally, be on time, and turn off cell phones, pagers, and beepers. If you are being videotaped during the deposition, avoid eating or drinking. Look at the camera and not counsel when you answer questions and hold exhibits up to the camera. Finally, be aware of your body language; sit up straight and don’t slouch.

Make sure you have a basis for all the opinions you plan to offer, whether based on personal experience or specific clinical or scientific evidence. Your testimony should always be within your area of expertise. Know when you first formed the opinions, what documents you reviewed in arriving at your opinions, and what methodology you used to derive the opinion. Be prepared to discuss how prior opinions differ from or are the same as current opinions. Be organized. You want to be able to put your hands on information quickly and easily. This helps to maintain your credibility.

Be as definite about your answers as you can possibly be. You should only answer the questions you are asked. Do not volunteer information. Be watchful of attorney tactics such as asking questions that limit your answers and guide your answers in the direction the attorney wants them to go or that force you to be ambiguous in your response. However, do not speculate unless you are asked to do so. For example, you may be asked to estimate the amount of time it takes to complete certain tasks. Keep in mind when answering that every person does things differently and other factors can affect timing such as the resources that are available, the condition of the patient, and the experience of the nurse. Another example may be when you are asked to base an opinion on a hypothetical set of facts. Keep in mind that, although the facts may mirror the facts of the case you have reviewed, there may be some information that is provided in the hypothetical that is not quite the same. Your answer should take this into account and distinguish the difference.

Keep in mind that opposing counsel may ask questions with the intent to provoke you into an emotional response. An emotional response is not always carefully thought out and may come back to cause you problems. Opposing counsel will note which questions provoke you or cause you to respond with hesitancy, angrily, or equivocally. Once on the stand at trial, this could affect whether a jury believes you or not.

Take breaks when you need them. Breaks will help you collect your thoughts and get reenergized for the rest of the questioning. Be sure to ask to read and sign your deposition transcript. You do not want to waive reading and thereby agree to the accuracy of a document that you have not seen.

At trial, be confident but not arrogant or cocky. You want to be open and friendly. Look at the jury when you testify. Again, be aware of your body language and dress and act professionally. Speak clearly and concisely. Speak in a language the jury and judge can understand. Watch to be sure that the judge and/or jury are following you and take the time to explain terms if the information you are imparting may lead to confusion. Be composed and carry yourself with dignity. You are not the one on trial even though it may seem so during the cross-examination. Your job is to present the facts and the evidence and your opinion; the legal process will then do the rest.

Whether at deposition or at trial, stick to the facts. Don’t try and bluff your way through. If you do not know, say so. Do not become defensive and do not be baited into giving a quick answer. Do not start thinking in hypothetical situations and turn supposition or inference into fact. Your testimony can be damaged by allowing yourself to be led astray with hypothetical questions, convoluted statements, and questions that have no relevance. Make sure you know which facts are in dispute. You do not want to concede a point that could damage your client’s case. Above all, try to make sure your testimony is being understood. You will get few points for being impressive. What you want to do is have the ability to persuade the judge or jury that your client is in the right. That’s the reason you were hired.

Remember, first and foremost, that you are obligated to tell the truth and you should answer in a fair and impartial manner. If you tell less than the truth, you not only lose credibility in the eyes of the jury and the judge but also run the risk of being prosecuted for perjury, being sued for negligence, and possibly losing your license. Never give the court a reason to criticize you.

Finally, you know your stuff and who better than you to help the jury or judge understand, so relax. If you are knowledgeable, confident, and firm in your opinions, you should have no problem serving as an expert witness.

Disclosure: This article is neither intended to be a comprehensive review of every state’s law nor is it intended to provide legal advice. Legal counsel should be sought in the event you are subpoenaed.

REFERENCES

1. The Synchronics Group. Five imperatives for expert witnesses: effective non-verbal skills can be learned. http://www.synchronicsgroup.com/articles/articles_5imperatives_p.htm. Accessed February 13, 2013.

2. Kolczynski PJ., for the Advice Company How to be a successful expert witness. http://expertpages.com/news/how_to_be_a_successful_expert_wi.htm. Published 1997. Accessed February 13, 2013.