In this section I’ll talk a little about general issues about testimony.\u00a0 I’ll talk later on more specific issues — voir dire, Daubert challenges, bias challenges, etc., but this section brings in basic guidelines.<\/p>\n
1)\u00a0 Remember that this is theater.\u00a0 \u00a0Your message is important and real, but this is a stage.<\/strong><\/p>\n Testimony is a performance, and the audience is the jury (and to a lesser extent, the judge).\u00a0 One of the biggest mistakes I see younger pathologists make is forgetting the performance aspect of all of this.\u00a0 \u00a0Understand that I am not minimizing the importance of the medical aspect of what we do, the effort of most folk involved to make this as much a search for the truth as possible, the good intentions of all involved, or the profound stakes that folk have in the\u00a0 outcome or the significance of the findings.\u00a0 \u00a0But it is still a performance.<\/p>\n Basically, a trial is a battle of propaganda machines.\u00a0 One side slants the data as far as allowed to make it look like the defendant is guilty and the other slants it as far as allowed to make it look like the defendant is innocent.\u00a0 \u00a0The judge is there to keep people from lying outright or going too far off the rails.\u00a0 It’s essentially like having a small\u00a0 target audience listen tot the women of “The View”<\/a> for one hour, then the people from “Gutfeld!”<\/a> for one hour, and then vote on who gets to be President.<\/p>\n We *should* not care who wins, and as experts we should not present our findings to bias the jury one way or the other outside of our concrete conclusions.\u00a0 However, it is the job of counsel to encourage the jury to interpret our findings in as biased a way as possible.\u00a0 We need to fight this, and in order to do that, we have to be as good at showmanship as they are.<\/p>\n I remember one case where counsel made a big deal of some findings on external exam.\u00a0 it was obvious that he was trying to cast the decedent as a ne’er do well because of his tattoos and general appearance .\u00a0 This was back before tattoos were popular:<\/p>\n “So, Doctor Oliver, he had a lot of tattoos, didn’t he?”<\/em><\/p>\n “A few.”<\/em><\/p>\n “Things like skulls and spider webs and such?”<\/em><\/p>\n “Yes.”<\/em><\/p>\n “And he had a scraggly beard, didn’t he?”<\/em><\/p>\n I then, stroked my own beard — which my wife has called ‘scraggly’ — and said, “Well, counsellor, I suppose ‘scraggly’ is in the eye of the beholder.”<\/em><\/p>\n Another thing that I should say first up to younger pathologists is that 99% of your testimony will be trivial.\u00a0 “Doc, what did you find?”\u00a0 \u00a0“He was shot in the head.”\u00a0 “Is that what killed him?”\u00a0 “Yes.”\u00a0 “No further questions.”<\/p>\n The rest of this post is for that 1% of cases where it’s challenging and interesting.<\/p>\n 1.1) Never take anything personally, even if it’s meant personally<\/strong><\/em><\/p>\n Carl Sandburg once said \u201cIf the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”\u00a0 \u00a0Sometimes they will pound on the pathologist<\/em> and yell like hell.\u00a0 \u00a0If your testimony is damning, they might just attack you personally.\u00a0 That means they may go after your competence, your integrity, your knowledge, whatever.\u00a0 They will ask ambiguous questions and then try to tie you up in knots and make it look like you are lying or contradicting yourself.<\/p>\n Sometimes counsel will convince themselves that you really are a bad egg in order to justify to themselves what they do.\u00a0 But usually, it’s just theater.\u00a0 If they can make you look bad in front of the jury, then the jury will give less credence to what you say.<\/p>\n Many years ago, I testified in a small rural courthouse.\u00a0 There was no waiting room for witnesses, so I sat on a bench right next to the courtroom door during opening statements.\u00a0 As I sat there, a Bailiff walked by and turned to me:<\/p>\n “Are you Doctor Oliver?”<\/em><\/p>\n “Yeah..”<\/em><\/p>\n He shook his head.\u00a0 “Man, they talkin’ ’bout you in there.”<\/em><\/p>\n Sure enough, the defense (I was testifying for the prosecution) was apparently saying horrible things about me.\u00a0 When I got on the stand, they claimed that I had done a sloppy autopsy, that I had not done important tests, that I falsified my results, that I was conspiring with the prosecution to falsify my findings.\u00a0 All sorts of stuff.<\/p>\n The funny thing was that counsel and I were fairly friendly with each other.\u00a0 I knew both him and his wife collegially and occasionally socially,\u00a0 It was a small town, and everybody knew everybody.\u00a0 And, after he got through raging against me and the trial was over, we were as pleasant as we could be with each other.\u00a0 His problem was that my findings in the case were fairly damning to his client.\u00a0 He couldn’t really argue against the findings, since they were well documented with photographs and laboratory results, so he had to attack *me* instead.\u00a0 I’ll tell another story about this kind of thing when I talk about Daubert challenges in another post.<\/p>\n I recently tallked to a colleague who was in deposition.\u00a0 Because she came from an Eastern European nation originally, one of the lawyers tried to tie her to Slobodan Milo\u0161evi\u0107, the ex-Yugoslavian President who was charged with war crimes.\u00a0 On no basis at all.\u00a0 Just because she was born in Eastern Europe.\u00a0 It’s crazy.<\/p>\n The key here is to not become emotionally invested in this. You have to defend yourself of course, but you need to do it succinctly and not get defensive.\u00a0 When I was young, I had two instinctive impulses, and both of them can be self-destructive.<\/p>\n The first will be the impulse to over-explain.<\/em><\/strong>\u00a0 There’s a fine line here.\u00a0 Let’s say that you performed an autopsy and declined to order vitreous electrolytes.\u00a0 I only order lytes if I see some specific indication for it.\u00a0 I might order them if the decedent is a diabetic and the Chemstrip of the vitreous (which we do in all cases) comes back positive for ketones and high glucose.\u00a0 I might order them in a putative elder neglect case if the decedent looks dehydrated (yes, I know the limitations of that).\u00a0 But, I won’t order it in a self-inflicted gunshot wound case.\u00a0 So, if you don’t think something is worth doing, that’s fine.\u00a0 Just have a short, simple, reason for it.\u00a0 Don’t start babbling.\u00a0 For instance, if you didn’t do histology on a bruise and you are questioned on the stand, don’t start going into cellular patterns in histology or cost effectiveness or whatever.\u00a0 It’s enough to simply say “There is so much variation in the findings that it would not have been useful in this case.”\u00a0 Or whatever.\u00a0 \u00a0If you start droning on and on you risk sounding like you are dissembling or, worse, you will bore the jury to tears.\u00a0 Most important, the more you talk, the more you are likely to say something *else* that counsel can jump on. For instance, you might mention *another* test you didn’t do, and counsel will start hitting you on that. \u00a0If counsel pushes you, then you can launch into a lecture.\u00a0 When that happens, I always make sure the jury knows that I’m only doing it because counsel is making me.<\/p>\n The second is the tendency to get defensive and react emotionally.<\/strong><\/em>\u00a0 Once you start letting your emotions take over, you are at a huge disadvantage.\u00a0 Counsel is trained to exploit uncertainty and defensiveness.\u00a0 The jury can sense emotions, and will think you less professional.\u00a0 Don’t lash out at counsel.\u00a0 Don’t make snide comments.\u00a0 Resist the snappy comeback with all your might.\u00a0 One of the big keys here is that the more counsel is “mean” to you, they worse *they* look.\u00a0 If you don’t take the bait, then *they* are the ones who look bad.\u00a0 As Solomon said in Proverbs, “A fool gives full vent to his spirit, but a wise man quietly holds it back.”<\/p>\n Let’s go back to that case I just described where counsel attacked me horribly.\u00a0 By that time, I\u00a0 had been through this a million times.\u00a0 I didn’t get defensive.\u00a0 I responded to all the attacks with simple, straightforward, but complete answers.\u00a0 After my testimony was over, the judge called a break.\u00a0 In this court, both prosecution and defense had people scattered throughout the building doing odd tasks, but their real job was to listen to any conversation between the jurors that might be happening.\u00a0 At the end of the lunch break, these folk reported that the jurors were so put off by the attacks on me that they were inclined to convict the defendant just because the defense lawyer was an ass.<\/p>\n However, if you start attacking back at counsel, then you will be no better than them.\u00a0 More important, you will lose.\u00a0 They are trained to both start and win those kinds of dialogues.\u00a0 You aren’t.\u00a0 And you’re not a smart as you think you are. As the Psalmist says, “Set a guard over my mouth, Lord; keep watch over the door of my lips.”<\/p>\n I’m not saying you should not stand up for yourself — you should.\u00a0 You will have to answer accusations and slander on the stand.\u00a0 But keep your head about it and don’t over-react. Just remember that it’s a play, and both of you are playing a part.\u00a0 They are playing Snidely Whiplash<\/a> (you young people look it up), and you are playing Dudley Do-Right<\/a>.\u00a0 If you start twirling *your* moustache, things will go south.\u00a0 \u00a0There’s a huge temptation to throw out a one liner or snappy comeback.\u00a0 Resist it.\u00a0 It’s not as clever as you think.\u00a0 Worse, even if you hit home, there is a classic riposte of “Do you think this is a joke, Doctor?\u00a0 A man’s life is on the line here.”\u00a0 They can say stuff like that.\u00a0 You can’t.<\/p>\n The key to both of these is to maintain a sense of detachment.\u00a0 Don’t get emotionally invested in any of this.<\/p>\n I had my Zen moment with this a few years ago when I was working for the defense on a wrongful death case.\u00a0 It was a tort that involved thousands and thousands of pages of medical records.\u00a0 During my cross examination, the plaintiff’s counsel pulled out a couple of pages of physical therapy notes.\u00a0 He asked me to read the notes (ostensibly, I think, to impeach a statement I’d made about the physical ability of the decedent to perform certain tasks).\u00a0 While I had scanned all ten thousand pages and made myself familiar with the conclusions of the physical therapists, I hadn’t gone over them word for word.\u00a0 In particular, the therapist used some abbreviations I wasn’t familiar with. When I scanned the pages, I didn’t care– all I cared about was what the physical therapist wrote in his or her conclusions about the decedent’s abilities.<\/p>\n When I admitted I didn’t know what the abbreviations meant, counsel went to town, saying that, then as far as I knew it could have meant the opposite of what I said (it didn’t– I went by the concluding narrative),\u00a0 \u00a0Counsel went through four or five of the notes asking me what those abbreviations meant each time.\u00a0 Each time I said I didn’t know, until I got tired of it and decided to point out to the jury that he was badgering me.\u00a0 I said,\u00a0 “Look, no matter how many times you ask me, I still won’t know.”\u00a0 At that point the judge stepped in and said “Move on, counselor.”\u00a0 The thing that struck me was that when I got off the stand, I had a strong urge to go up to the plaintiff’s counsel and congratulate him. I thoroughly enjoyed the give and take of the testimony.\u00a0 It was like playing chess — I was constantly trying to keep two or three questions ahead of him in order to block his flow, and he was constantly trying to get me off balance.\u00a0 It was great fun. Even though he scored a couple of good hits, I even enjoyed trying to figure out how to deal with them and keep the jury on my side.<\/p>\n There is a Taoist concept of “wu wei” or “effortless action.”\u00a0 This is not simple inaction, but instead is being so immersed in your environment that the correct action is obvious and thus almost thoughtless — requiring little effort on your part.\u00a0 The actor Bruce Lee characterized wu wei as being like water — you effortlessly fill the space you are in:<\/p>\n \u2018You must be shapeless, formless, like water. When you pour water in a cup, it becomes the cup. When you pour water in a bottle, it becomes the bottle. When you pour water in a teapot, it becomes the teapot. Water can drip and it can crash. Become like water my friend.\u2019<\/em><\/p>\n When testifying, you should immerse yourself into the act, reject self-doubt, fear, and apprehension.\u00a0 Think of playing a game you really enjoy.\u00a0 I used to really enjoy playing raquetball before my orthopedic injuries caught up with me.\u00a0 What I remember is that I most enjoyed playing the game and did my best when I stopped *thinking* about playing the game and instead lived within the game.\u00a0 I stopped thinking about the fundamentals and only concentrated on the game itself.\u00a0 Muscle memory took over.\u00a0 After the game, and between games, I thought about the fundamentals constantly.\u00a0 But in the moment of the game, there was only the game.\u00a0 I felt like that sometimes when I lived in Colorado and went skiing.\u00a0 You are almost not aware of the mechanics of skiing — it’s just you, the mountain, and the snow.\u00a0 Testimony can be like that when it becomes complex.<\/p>\n 1.2 If you don’t know something, be up front about it.<\/strong><\/em><\/p>\n Counsel will often quiz you on details of the case or ask technical questions you haven’t prepared for, like the abbreviations I mentioned.\u00a0 Don’t fake it.\u00a0 Just say “I don’t know — I went through 4000 pages of medical records, and I don’t remember it all.\u00a0 I’ll be happy to look it up if you want to take a recess…”\u00a0 \u00a0Whatever you do, don’t make something up. Don’t speculate.\u00a0 They asked that question because they *did* prepare for it.\u00a0 If you slip up, they will get you for it.\u00a0 They will start to press harder and you will end up flailing.\u00a0 Worse, you might start guessing at answers, and then you will really get something wrong.<\/p>\n It’s no big deal if you don’t remember something.\u00a0 The jury will understand it.\u00a0 \u00a0What they won’t understand is you bullshitting about it.<\/p>\n 1.3 Be very careful about appearing like you don’t care about\u00a0 things.<\/strong><\/em><\/p>\n This is one of my weak points.\u00a0 \u00a0I often don’t remember things because I consider the point irrelevant.\u00a0 You have to be careful, though about saying that something “doesn’t matter” unless\u00a0 you are able to be very explicit about why.\u00a0 More important, while you can say that something “isn’t relevant to my conclusion,” never say that “I don’t care.”\u00a0 When you say “I don’t care” it sounds arrogant and for some reason I don’t understand, juries generalize this into thinking you don’t care bout the case in general.<\/p>\n That kind of thing can slip up on you, or at least it does on me.\u00a0 \u00a0A few months ago I testified in a trial in which I had taken my report and a couple of other pieces of paper up on the stand to use as reference.\u00a0 When I got up to leave, I accidentally left my papers on the stand.\u00a0 One of the bailiffs asked me if I wanted the papers.\u00a0 I had finished my testimony, had been excused, and had my personal copies, so I didn’t need them.\u00a0 I said “Nah, that’s OK.\u00a0 Just toss them.”<\/p>\n I later found out from counsel that the opposing side made a big deal of that in closing statements, saying that it demonstrated that I was just a hired gun and didn’t care about the victim in this case — that I treated the report of her death like trash, and thus I considered the decedent to be trash.\u00a0 It’s a lie, of course, but that’s the kind of thing lawyers do.<\/p>\n 1.4.\u00a0 Talk to the jury — your testimony is a conversation with them<\/strong><\/em><\/p>\n When you testify, counsel is asking questions and it’s natural to respond directly to counsel.\u00a0 I do that if the answer is a simple “yes” or “no,” but if I am a actually explaining something or giving more than just one sentence, I turn, face the jury, and speak directly to them.\u00a0 This accomplishes a couple of things.<\/p>\n First, it creates some rapport between you and the jury.\u00a0 This assumes, of course, that you aren’t acting like an arrogant jerk to start off with.\u00a0 Other than that, eye contact provides a way of direct communication that simple words cannot.\u00a0 It allows you to reinforce that you care about the case (see above) and that you are interested in how the *jury* feels about the case.\u00a0 You are involving them in your testimony, and it makes them feel more on your side.\u00a0 By talking to them directly, you are showing them respect, and they tend to appreciate it.\u00a0 The more they like you, the more you will convince them that what you say is right.<\/p>\n Second, by watching the response of the jurors, you can sorta tell how you are coming across and modify they way you testify to be more appealing.\u00a0 If the jury is nodding to what you say, that’s good.\u00a0 If they are stone-faced and or won’t meet your eyes, that’s not so good and you need to make some course corrections.\u00a0 This is particularly true if you project a particular persona. Most people say “Just be yourself,” but that’s a little misleading.\u00a0 Most folk have a self-perception that includes a certain face they project to the public.\u00a0 Some people are brash and aggressive.\u00a0 Some people are laid back.\u00a0 Whatever.<\/p>\n Remember that even when you are “being yourself” you are projecting a persona.\u00a0 The buzzword theory for this is “life script.”<\/a>\u00a0 We all have views of ourselves and how we “should” or “would” act in certain circumstances.\u00a0 It’s a big deal in transactional analysis<\/a>, but has applications elsewhere as well.\u00a0 \u00a0If you have not sat down and examined your own script, you should . That script determines how you present yourself to the world.\u00a0 Moreover, you need to examine that script if you want to change the course of your life — though that’s a different issue than that discussed here.\u00a0 You should sit down and see how you project yourself.\u00a0 Ask your friends and colleagues. Then ask yourself if that’s what you want to impress on a jury.<\/p>\n Taking control of that projection doesn’t mean that you are being false.\u00a0 It means\u00a0 you are being mindful.\u00a0 I have a colleague who does a great job of projecting an avuncular Southern gentleman feel.\u00a0 It’s like listening to Wilford Brimley.\u00a0 I know another who has this detached professorial persona. I tend to project a bit of a southern Evangelical Christian feel — because that’s what I am.\u00a0 If asked if something I don’t think happened is “possible,” I might say “I believe that with God all things are possible, but I think this is very, very unlikely.”\u00a0 That feels natural to a jury in rural Tennessee, and it’s natural to my way of thinking.\u00a0 It may not work with an urban jury in Staten Island — so I tone that down a bit when I testify in an area where Christians tend to be viewed negatively.<\/p>\n The key here is that your conversation is more with the jury than with counsel, even though counsel is asking the questions.\u00a0 It’s not quite a one-way conversation, but you need to be aware of how you are presenting yourself and attentive to whatever clues you can get from the jury.<\/p>\n 2. Always tell the truth.<\/strong><\/p>\n I really shouldn’t have to say this, but people still get caught on this.\u00a0 Don’t pad your CV.\u00a0 Don’t grossly overestimate the number of cases you’ve done.\u00a0 I have a colleague who has kept a notebook with every autopsy he’s performed.\u00a0 When counsel asks him how many autopsies he’s done, he knows exactly how many that is.\u00a0 I didn’t keep those records, and I have a hard time estimating the number.\u00a0 When I was in the Army, I did very few.\u00a0 When I was running an one-man shop for the GBI, I did quite a few.\u00a0 When asked on the stand, I have to give a kind of hand-wavy answer because I can’t give a firm number.\u00a0 But even so, I try not to overestimate — ther’s an upper limit on that estimate that can be just wacky.\u00a0 We’ve all seen these pathologists on television who say they’ve done tens of thousands of autopsies.\u00a0 We all know that’s physically impossible without some very creating accounting.\u00a0 You may get away with that at trial, but you may not.\u00a0 Why open yourself to attack?<\/p>\n Once you show that you are an expert, it really doesn’t matter that much.\u00a0 I’ve never heard of a jury that said “Well, pathologist A has done 6000 autopsies and pathologist B has only done 4000 autopsies, so pathologist A must be right.”\u00a0 \u00a0It’s a little like knowing what medical school you’ve gone to.\u00a0 When you are a student, it seems very, very important whether or not you went to a high profile med school.\u00a0 When you’ve been practicing for five years, nobody really cares, except the alumni association.<\/p>\n If you don’t know something, admit it.\u00a0 If you’ve made a mistake, own up to it. I’ve already written about that.\u00a0 \u00a0If you should have done something but didn’t, own it.\u00a0 \u00a0Even it you take a small hit for it, it won’t be the end of the world.\u00a0 If, on the other hand, you temporize and try to cover it up, you are opening yourself up to a disaster on the stand.<\/p>\n I once had a case where I missed a piece of trace evidence in a case — a strand of hair stuck in some dried blood on a finger.\u00a0 \u00a0I didn’t see it, and it got washed down the drain when the body was cleaned.\u00a0 \u00a0It showed up in the preprocessing photographs of the body, however.\u00a0 The defense in this case proposed that that missing hair was the key to the case.\u00a0 They suggested that it would have shown a different assailant.\u00a0 Counsel had made a big deal of this in pretrial hearings, so I knew it would come up.<\/p>\n On the stand, counsel started to ask me about it:<\/p>\n “Doctor Oliver, don’t you look for trace evidence, like hair?”<\/em><\/p>\n “Yes.”<\/em><\/p>\n “And aren’t you supposed to collect it?”<\/em><\/p>\n “If I see it and notice it.<\/em>”<\/p>\n At that point I expected here to hold up the autopsy photograph and say something like: “And did you see *this* hair on the finger of the decdent?”\u00a0<\/em>\u00a0 — and then go down the path of why didn’t I see it and what else did miss and all that stuff.\u00a0 But I could see the wheels turning in counsel’s eyes as she figured out that me simply saying “Hey, I didn’t notice it” would disarm her because from that point on she’d just look like she was badgering me.\u00a0 She abruptly dropped the line of questioning.<\/p>\n Worse, don’t try to cover it up and say something like “Well, I collected it, but it must have gotten lost in processing” or something stupid like that when you obviously did not.\u00a0 \u00a0Just take the hit and wait for the chain of questioning to end.\u00a0 If necessary, your counsel will ask questions to try to rehabilitate you, but he or she will likely decide it’s not worth the effort — or the recross it will bring on.\u00a0 If you don’t give counsel more ammunition, they will eventually run out of bullets.\u00a0 If you’ve done a good job on the autopsy in general, it won’t be a deal killer.\u00a0 If you really did screw things up, accept the consequences and learn from it.<\/p>\n 3. Respect the court<\/strong><\/p>\n Always show the judge proper deference.\u00a0 Dress appropriately.\u00a0 Don’t show up drunk or high. Don’t use profanity.\u00a0 Don’t act like a slacker.\u00a0 Do be polite.<\/p>\n These are all basic things, but I’ve seen them all broken.\u00a0 The judge is God in court.\u00a0 You must show proper decorum.\u00a0 The jury, the judge, and counsel all take this very seriously, and so should you.\u00a0 I’ve heard of pathologists showing up drunk and making fools of themselves.\u00a0 I’ve heard of pathologists getting into shouting matches with counsel or judges.\u00a0 It never turns out well.\u00a0 Early in my career, I fell into the trap of getting angry with counsel and getting into a pissing match on the stand.\u00a0 Both I and counsel were reprimanded.\u00a0 Neither of us looked good.\u00a0 \u00a0I never did it again.<\/p>\n Don’t try to talk through an objection.\u00a0 What you say is important, but you look petulant when you do that.\u00a0 Don’t roll your eyes when the judge says you can’t answer a question.<\/p>\n Never forget how much power a judge has.\u00a0 I’ve been extradited, or rather *almost* extradited, to another state once.\u00a0 \u00a0A year of so ago I testified in a murder trial in my local county.\u00a0 The next day I got a call from the court to come and testify at the sentencing hearing.\u00a0 I was at a book store at the time dressed in jeans and a tee shirt.\u00a0 I told he witness coordinator:<\/p>\n “Look, I’ll be happy to come, but I’m not dressed for court.\u00a0 It’s a 30 minute drive home, 15 minutes to dress, and 30 minutes back.\u00a0 Can I come in about and hour and a half?”<\/p>\n She said “No.\u00a0 The judge wants you now.\u00a0 The Sheriff will be at Books-A-Million in five minutes.”<\/p>\n And he was.\u00a0 So, I testified in jeans and a tee shirt.\u00a0 Because when the judge says “Froggy” you say “How high?”\u00a0 And while you are jumping, show good grace.<\/p>\n 4. Help the court recorder<\/strong><\/p>\n Someone might go over the transcript of your testimony, particularly if the case goes to appeal or if you are testifying in a pretrial hearing or deposition.\u00a0 We’ve all seen transcripts with wild misspellings, odd word choices and such due to the fact that the transciptionist is not a forensic pathologist. Give the court reporter a break.\u00a0 Go ahead and spell tough words.\u00a0 If you are demonstrating something with motions, then describe the motions, e.g. “The gunshot wound went from here to here.\u00a0 I’m pointing to my right temple and the back of my head.”\u00a0<\/em> \u00a0If you don’t do it a lot, it won’t be distracting, and the court reporter will appreciate it.\u00a0 You can talk to the court reporter about it ahead of time if you can.\u00a0 He or she may have special requests, or not think it is worth the effort.<\/p>\n Similarly, speak relatively slowly.\u00a0 This is hard for me.\u00a0 I’m a fast talker, normally, and occasionally the court reporter has to tell me to slow down.\u00a0 I try to remember, but sometimes I backslide.<\/p>\n In depositions,\u00a0 you will often be offered the option to review your transcript prior to publication.\u00a0 Some people think this is very important.\u00a0 I have never bothered — life is short. But, as they say, YMMV.<\/p>\n 5. Be prepared<\/strong><\/p>\n To the degree you can, be prepared with as much data in your mind as you can.\u00a0 \u00a0I really have a limited buffer in my head, and I usually can’t remember *everything*, particularly when there are reams of hospital records.\u00a0 Just do the best you can.\u00a0 The key here is to be refreshed.\u00a0 If you haven’t looked at the case is three months, be sure to go over everything before the trial.\u00a0 Know the rules before you go in about what you can take with you on the stand.\u00a0 Sometimes you can take your notes or your report or the medical records.\u00a0 Sometimes you can’t. Find out ahead of time.\u00a0 If possible, go over the direct questions with counsel before trial, and ask about expected cross examination questions.<\/p>\n 5.1 Don’t form opinions in a rush on the stand<\/strong><\/em><\/p>\n Sometimes counsel will try to get you to give an opinion on a document — a deposition, a scientific article, a picture, whatever — that you had not had an opportunity to look at before trial.\u00a0 Be *very* wary of doing that.\u00a0 It’s almost always a trap.\u00a0 This happens to me a lot with scientific articles. Counsel will come up to me and give me an article that he or she purports disagrees with something I say.\u00a0 It will be:<\/p>\n “Doctor are you familiar with the Mayo Clinic?”<\/em><\/p>\n “Yes.”<\/em><\/p>\n “It has a great reputation, doesn’t it?”<\/em><\/p>\n “I believe so.”<\/em><\/p>\n “Dr. CCC of the May Clinic says that the moon *is* made of green cheese.\u00a0 What do you say to that?<\/em><\/p>\n “I’d have to study the article.”<\/em><\/p>\n “Well, Doctor, I have it right here.\u00a0 Please take a look at it…”<\/em><\/p>\n Don’t fall for that.\u00a0 I usually say “In order to critically evaluate a paper, I have to study it.\u00a0 I have to look up the references it relies on.\u00a0 I have to compare it’s methods with similar papers.\u00a0 I can’t do all of that in five minutes on the stand.”<\/p>\n You may know the paper already, or you may be very comfortable with the subject, and you can make the decision to play the game of scanning an article on the stand. But be very wary.<\/p>\n <\/p>\n 6. If you have a blot on your record, own it and be prepared for questions on it.<\/strong><\/p>\n If you have some blot or something on your record — you didn’t pass the boards, you were put on probation by a licensing board, whatever — be prepared for a question on it.\u00a0 This has happened to me since I have been cancelled by NAME.\u00a0 It’s not a big deal for me.\u00a0 I’m happy to discuss what happened.\u00a0 When it first came up at trial, I was surprised since it had nothing to do with the issues at trial, and I was not prepared.\u00a0 So, I just dropped to the default of “tell the truth and say nothing more.”\u00a0 My counsel wasn’t all that concerned.\u00a0 \u00a0Now that it’s happened, I have a good response prepared.\u00a0 But I should have known it was coming.<\/p>\n