Strategies to remain calm under pressure; to be clear and concise; and to know what is expected in courtroom battles.
SPECIAL REPORT: FORENSIC PSYCHIATRY
In law school, students are taught how to act, dress, and talk in court. They are told where to stand, what color suit to wear, what to say, and how to say it. They practice in lifelike simulations, held in courtrooms.
Psychiatrists—often called to testify in court—receive little if any of this training.1 They can feel unprepared when they first step on a witness stand. This article will help psychiatrists feel more comfortable with the testifying process by providing some necessary vocabulary, an outline of the judicial process, and practical tips on courtroom behavior.
Types of proceedings
There are many types of courtroom proceedings.2 There are hearings, in which judges make preliminary decisions on specific judicial issues, such as a civil commitment hearing. There are depositions, in which attorneys “discover” what the other side’s witnesses plan to say at trial. Finally, there are trials, in which cases that did not settle or otherwise resolve are ultimately decided.
Each of these judicial proceedings has its own set of rules and procedures, which vary from state to state. Psychiatrists can be asked or subpoenaed3 into any of these venues to testify under oath. This article focuses on trial testimony, but the concepts are useful in any context.
Types of witnesses
When a psychiatrist testifies, it is either as a party or non-party. In criminal court, there are defendants and prosecutors. In civil court, there are plaintiffs, who file suit, and defendants, who are being sued. If a psychiatrist is sued by their patient, the patient becomes the plaintiff; the psychiatrist becomes the defendant. If that psychiatrist testifies at trial, they testify as a party.
More commonly, psychiatrists testify as a non-party—either as a fact witness or as an expert witness.4 A fact witness testifies about what they personally experienced. An expert witness testifies about their opinion. For example, after a car accident, a pedestrian who saw the collision would be a fact witness. A psychiatrist hired by the plaintiff to assess psychological damages would be an expert witness.
Another example would be a bank teller injured in a bank heist who sues their employer for emotional distress. If the bank teller (as the plaintiff) subpoenas their treating psychiatrist to testify about the bank teller’s pre-existing psychiatric condition, that psychiatrist would be a fact witness. If the bank teller’s attorney hires a psychiatrist to conduct an independent medical examination (after the robbery), that psychiatrist would be an expert witness.
Fact witnesses are usually unpaid. Expert witnesses are paid by the retaining attorney or the court. Expert witnesses can serve in a consulting role (reviewing a case and giving advice about trial strategy or chances of success) or a testifying role (reviewing a case and forming an opinion, and then testifying about a specific issue)—or both.5 In the bank teller example, a testifying expert witness could be asked to form an opinion on whether the bank teller had posttraumatic stress disorder and, if so, whether it was due to the bank robbery. In many states, physicians are required to offer their opinions with reasonable medical certainty. This is a legal standard that most often means more likely than not. For a summary of some of the roles, and responsibilities, of psychiatrists in court, see the Table.
As a witness, you should take advantage of your attorney’s expertise. Attorneys are trained in courtroom procedure. If you are a defendant, your attorney is on your side and should be a particularly helpful resource (make sure you meet with them before any proceeding). If you are a non-party witness, you should still avail yourself of the attorney who hired or subpoenaed you to ask logistical questions.
When you are asked to appear at a court proceeding, make sure you know where you need to be and at what time. Judges do not tolerate lateness. Plan to arrive at the courthouse at least 30 minutes early. Bring a government issued identification card. Know which courtroom in which you will be testifying and where you should wait (inside or outside of the courtroom). As a witness, you will not know exactly when you will be called to testify; you might be given a window of several hours. Bring relevant materials to review or a book to read.
When your name is called, go straight to the witness stand. At some point, either on the way there or once you sit down, you will be sworn in. The courtroom is the judge’s domain. Unlike a hospital, you are a guest. Act accordingly.
During a trial, questions are asked in a very stylized format. Your attorney will begin with direct examination. You should have discussed your testimony with your attorney before the trial and educated them on pertinent psychiatric concepts. Their ability to ask the right questions will depend on how well you have helped them understand your analysis and psychiatric opinions.
During direct examination, your attorney will guide you through a series of open-ended questions. Your fundamental responsibility is to present your opinions cogently and convincingly. On cross-examination, the opposing attorney will ask specific questions based on what was covered during direct examination.
The American court system is adversarial. One of the main purposes of cross-examination is to discredit you and/or your opinion. The key role of an opposing attorney is to knock you off balance. After cross-examination, attorneys have a chance for redirect, to help rehabilitate you (in the event any damage was done) and to give you an opportunity to clarify your answers. Then there is re-cross—the opposing attorney’s second chance to discredit you.
Your value as a witness is not just in what you say, but how you say it and how you come across (how credible you are). No matter how smart you are, if the judge or jury do not believe you, you will be an ineffective witness.
You always need to tell the truth, even when it goes against the side for which you are testifying. You need to be professional and likeable. Particularly with jury trials, it helps to act like the jury expects you (as a doctor) to act and look like they expect you to look.
Juries decide whether to believe a witness, including an expert witness, based on what they deem credible.6 Credibility is judged on a variety of factors. This includes your professional credentials (where you went to school, how long you have practiced, what you have published, and so on), whether you appear biased, and your conduct.
Just like we evaluate our patients’ demeanor and appearance, judges and juries evaluate a witness’s demeanor. An important aspect of demeanor is attitude. It is okay to be nervous. It is not okay to be grandiose, entitled, or overly professorial. The worst sin is to appear arrogant. Do your best to be likeable.
Likeability is hard to teach. Even people who are likeable in real life can become hostile on cross-examination. It is helpful to view cross-examination as a tennis match; a series of volleys between 2 sides. Wait for the entire question to be asked, then pause and think. Only answer the question that is asked. Do not feel as if you need to keep talking. Embrace the silence, or pregnant pause, which opposing attorneys may use strategically to get a witness to keep talking.7
Do not let the opposing attorney provoke you8, which they often try to do. For instance, if you are a defendant in a medical malpractice claim, the plaintiff’s attorney might lead you through a series of yes or no questions (eg, whether you ordered a series of tests you believed unnecessary)— knowing that you will answer “no” on each question. This can feel uncomfortable. Maintain your poise and calm demeanor. Take the high road. Be your professional self and avoid getting into arguments with the cross-examining attorney.
Your professional identity should come across in your appearance (Figure). Your look serves as jury’s first impression.9 Do not wear anything distracting, such as bright clothing or “loud” jewelry. Dress as if you are going to a job interview. Wear a nicely tailored, crisply pressed, dark-colored suit. Men should wear a light-colored dress shirt with a simple tie. Women should wear a high-cut blouse and closed-toe shoes, preferably with a low heel. Both men and women should pay particular attention to their grooming, making sure their hair is neatly styled.
The bottom line
It takes years of practice to become a stellar witness. But, even their first time, a psychiatrist can do a good job testifying.10 Just prepare adequately, remain calm, tell the truth (in easy-to-understand language), and remember that you are there as a doctor.
The courtroom is designed to be adversarial. To be an effective witness, credibility is key. Witness credibility hinges not just on what the witness says, but how they say it and their overall demeanor.
Dr VanDercar is a forensic psychiatry fellow, University Hospitals Cleveland Medical Center. Dr Resnick is professor of psychiatry, Case Western Reserve University School of Medicine. He serves on Psychiatric Times®› editorial board.
1. Williams J, Elbogen E, Kuroski-Mazzei A. Training directors’ self-assessment of forensic education within residency training. Acad Psychiatry. 2014;38:668-671.
2. Marcus RL, Rowe TD. Gilbert Law Summaries: Civil Procedure. 17th ed. Chicago, IL: Thomson West; 2008.
3. Mossman D. ‘You’ve been served’: What to do if you receive a subpoena. Curr Psychiatry. 2015;14(12):33-36.
4. Piel J, Resnick P. Psychiatrists as Expert Witnesses. Dir Psychiatry. 2016;36(3):165-178.
5. Gutheil TG. The psychiatric expert witness. Psychiatric Times. April 1, 2002. Accessed July 29, 2020. https://www.psychiatrictimes.com/view/psychiatric-expert-witness
6. Brodsky SL, Griffin MP, Cramer RJ. The witness credibility scale: An outcome measure for expert witness research. Behav Sci Law. 2010;28(6):892-907.
7. Discovery and depositions. In: Gutheil TG. The Psychiatrist as Expert Witness. Washington, DC: American Psychiatric Press, Inc. 1998:59-75.
8. Personal attacks. In: Brodsky SL. The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC: American Psychological Association. 1999:108-111.
9. Pitera M. Courtroom attire: ensuring witness attire makes the right statement. Jury Expert. 2012;24(4):40-42.
10. McElhaney JW. A good witness. Litigation. 1993;19(4):65-66.