Legal and regulatory proceedings
An article for physicians by CMPA General Counsel
Originally published June 1999 / Revised May 2008 IS9908-E
Recommended ways to promote confidence and effectiveness when testifying in court.
Of interest to all physicians
A physician entering the legal arena, either as a defendant, fact witness or expert, may find the process stressful, bewildering and frustrating. Here are some suggestions to help you with the process of testifying.
Know what's expected
Prepare your testimony in consultation with your lawyer when you are testifying as a defendant, or with the lawyer for the party who called you as an expert. The lawyer should advise you why you have been asked to testify, let you know what to expect on
cross-examination,and suggest what you should review prior to your testimony (e.g., other reports, medical literature, medical records, etc.).
If you are called as a fact witness (the most common scenario being that you treated the patient before or after the incident in question), different considerations apply. In such a case, the general rule is that your duty of confidentiality to your patient prevents you from speaking about him or her to legal counsel without the patient's signed authorization or a court order. Normally, the lawyer contacting you will provide you with the patient's authorization, but if not, then you should wait for a subpoena or the patient's written consent and not discuss your patient's treatment with anyone prior to your attendance in court. If members are uncertain about the legal requirements in this context, they should contact the CMPA for advice.
- Ask the lawyer about your role in the legal process. For example, if you are appearing as a fact witness, you are probably being asked to testify because you were present at an occurrence, have knowledge of the facts of the case, have treated the patient, are familiar with the hospital policy in place at the time, etc. When appearing as an expert, you may have no personal knowledge of the facts in dispute and may be asked to provide an expert opinion on hypothetical facts. In that capacity, your role is to educate the court about the medical issues at the core of the case. Your role is NOT to be an advocate for the party calling you as a witness. Finally, you may be testifying as a defendant, in which case you may be asked numerous details about your own actions during the events that are the subject of the litigation.
Get and give a good impression
- If you have never been in court you may find it useful to learn the layout of a courtroom (by way of personal visit, diagram or photograph), the order of events (e.g., what happens when court is convened, which party's counsel speaks first, etc.), where you will be sitting when testifying, how an oath is taken, and how you should properly address the judge and counsel. This may sound trivial and perhaps appear to not be worth your time, but it is in fact very important. Taking the time to review these practical aspects of testifying will demystify the process, render the courtroom a more familiar place and make you feel more comfortable when you take the stand.
- Arrive at the hearing at the assigned time, if not before, and be dressed in business attire. The judge and jury need to be impressed with your evidence and your credibility. It is important to remember that first impressions are critical.
Be credible and confident on the stand
- Address your answers to the trier of fact (e.g. the judge, jury, arbitrator, board member, etc.).
- Ensure you understand what is being asked before you attempt to answer; do not hesitate to ask that the question be repeated or rephrased.
- Avoid answering questions you can't answer or that are outside the scope of your expertise. If you do not know the answer, simply say so.
- Speak slowly and clearly, as transcripts may be produced from your testimony and counsel and the judge, arbitrator or board members may be taking notes. Do not feel you must answer questions quickly. Take the necessary time to reflect upon your answer.
- Answer questions honestly and completely; avoid exaggeration.
- Answer questions as succinctly as possible; avoid discussing matters beyond the parameters of the question you have been asked.
- Use plain language. Where medical terms are useful or unavoidable, explain them clearly.
- Do not act as an advocate or partisan in the trial of a case; impartiality and objectivity are what is sought from your testimony.
- Refrain from speaking when an exchange takes place between counsel and the court (or arbitrator, board, etc.). An objection or motion may have been made, and you should remain quiet until the judge, arbitrator or board member either overrules or sustains the objection or allows or denies the motion. Once that determination has been made, you will be directed to continue.
Try to remain cool, calm and objective at all times. Do not get angry; be firm but polite. Remember at all times that the lawyer questioning you is simply doing his or her job. On
cross-examination,counsel may attempt to anger you by attacking your competence, or be especially friendly with you to elicit agreement with a statement he or she has made. At all times, remain objective and do not let the tone or the nature of the question influence the manner in which you respond.
These guidelines may appear to be mere common sense, but they can be easily forgotten in the stress of medico-legal litigation. Remember that your role is extremely important to the outcome of the case; the more at ease you are with the process, the more effective your role in it will be.