How to Survive Thrive Testifying in Court

I. Role of Expert

A. Provide Information

B. Area of Specialization

C. Give Opinions

II. The Art of Testifying

A. No bias – testified for both sides

B. Credentials

1. Stay within expertise

2. Keep up to Date

C. Connectivity

1. Use words your audience will understand

2. Eye Contact

3. Confident, but not arrogant

III. The Science of Testifying

A. Keep your temper

10 BY MR. A:
11 Q. In fact, speaking of nervous babbling
12 at the due process hearings, Dr. E, you, in
13 fact, have been involved as a witness in many
14 different hearings; isn’t that true?
15 A. Rarely nervously babbling.
16 Q. I am sure that is right. But familiar
17 with the process of testifying and familiar with
18 the role of a person identified as an expert
19 witness, right?20 A. Well, I have done it a couple times.

B. Answer a question in the shortest possible way.

8 Q. Well, let’s look at the report again
9 at the tail end of the first paragraph of that
10 section on psychiatric evaluation. It indicates
11 explicitly “there was no evidence of thought
12 disorder,” correct?
13 A. That’s correct.
14 Q. And if you had had a concern about the
15 presence of a thought disorder, presumably that
16 would have been indicated in some way, correct?
17 A. What I said was there was no evidence
18 of a thought disorder. That doesn’t mean there
19 wasn’t one. It means we didn’t see any evidence of
20 it.
21 Q. That is not what I asked you, Doctor.
22 What I asked you is if you had a concern about the
1 potential of a thought disorder as compared to the
2 existence of a thought disorder, wouldn’t you have
3 indicated in your report that this needed to be
4 further evaluated or ruled out or that some further
5 study needed to be done in order to make that
6 determination?
7 A. If I thought it was really a pertinent
8 point at this juncture, I would have said that.
9 Q. And, in fact, there was absolutely
10 nothing in either Jimmy’s presentation or the
11 information that you obtained to suggest there was
12 a thought disorder, correct?
13 A. I said there was no evidence of a
14 thought disorder.

C. Don’t guess or speculate beyond scope of your expertise or memory.

20 Q. Dr. E, how much time did you
21 spend in total in the course of this evaluation
22 either personally with Jimmy or observing Jimmy
1 through either the one-way mirror or the video?
2 A. Maybe a couple hours.
3 Q. A couple hours. And was that on one
4 day or more than one day?
5 A. I don’t remember. I just don’t
6 remember.
14 BY MR. A:
15 Q. Do you have a specific recollection of
16 how long?
17 A. You know, what I did for the — there
18 were two parts of it. I already told you that the
19 first part was when I was in the one — behind the
20 one-way mirror and went into the room. I thought
21 there was somewhere between 15 and 30 minutes. I
22 don’t recall.
1 The other times I was in and out of
2 the observation room where the video was watching
3 periodically during the examination. The reason I
4 did that is I didn’t want to be disruptive of the
5 process. But I came in and out several times. It
6 was not videotaped. It was there, turn on the
7 cameras and watch what was happening.
8 So you asked me to estimate the amount
9 of time, you know, I said maybe a couple hours. I
10 just don’t remember.

D. Never show favoritism or malice to either party to the litigation.

12 Q. So my question then is other than
13 asking his name and the couple of — I guess
14 you asked him a couple of questions to respond to
15 something. Is there anything else that you did to
16 interact personally with Jimmy?
17 A. So again I understand your question.
18 So let me respond in the best way I can, although I
19 think your question is somewhat — I can’t think of
20 the word.
21 Q. You don’t like it?
22 A. No, no. I have no problem with it or
1 you.

E. Never show unwillingness to concede a point in the opposition’s favor

17 Q. By the way, you never observed Jimmy
18 either in home or at the school, correct?
19 A. No, I did not.
20 Q. Did you review — are you aware that
21 there were training tapes prepared by several
22 people involved with the Jimmy’s program,
1 including panel members to train the staff?
2 A. I am aware of that, yes.
3 Q. Did you ever review any of those
4 videotapes?
5 A. No, I did not.
6 Q. And you didn’t attend any of the
7 trainings that were conducted live, did you?
8 A. No, I did not.

F. Break down your point so it is immediately comprehensible.

10 Q. The one from you to him on page 8-242.
11 This is your message to him. “I also thought we
12 were going to talk about our role and how to get
13 out of this mess. Is that still on? I can talk on
14 while here and you can E-mail to let me know if you
15 want to communicate about this. Sorry it is such a
16 mess.” What did you mean by that statement?
17 A. Because I think we were having a hard
18 time getting to a point of — we had been at this
19 for six months trying to make some differences for
20 Jimmy. And I think we weren’t making the
21 differences. And it was unpleasant.
22 And to be honest with you, there were
1 too many damn lawyers involved and not enough
2 educators involved. There were educators involved,
3 but everybody was feeling constrained by the
4 lawyers. So we were all very uncomfortable about
5 that. With all due respect, Mr. A, not just
6 you as a lawyer, but all the lawyers.

G. Don’t Answer a “Bad” Question, i.e. one that is:

1. Not understood

2. Can’t be accurately answered as presented

3. Needs explanation

20 Q. And what, if any, strategies would you
21 utilize to address delayed response time in terms
22 of its impact on a boy with this syndrome, his
1 communication?
2 A. It would depend on the context and
3 what the goal was. I mean I — it is just too
4 broad a question to answer.
11 Q. So either the report is missing data
12 that you just testified to or your recollection is
13 in error; is that right?
14 A. No, neither of those is correct.
15 Q. Well, it doesn’t contain the data you
16 just testified to, does it?
17 A. Yes, it does.
18 Q. Where is that?
19 A. Well, there is — during — every
20 piece of data that took place in that — everything
21 that took place in that room isn’t written in the
22 report; otherwise, the report would be — we didn’t
1 transcribe it. So what we did is we picked
2 examples of behaviors that illustrate points along
3 the way. The initial report actually had some more
4 stuff. And whether I did it or M did it, it
5 didn’t much matter.