Ethical and Effective Testimony During Direct Examination and Cross-Examination Post-Daubert

Harold J. Bursztajn, M.D.
Archie Brodsky, B.A.

Published in Practicing Psychiatry Without Fear: Guidelines for Liability Prevention edited by Lawrence E. Lifson, M.D., and Robert I. Simon, M.D.

Portions of this chapter are adapted from an article previously submitted for journal publication. Portions of this chapter are adapted from seminars given by Harold J. Bursztajn, M.D., between 1994 and 1996. The authors gratefully acknowledge audience participation and feedback.

The professional expertise, ethics, and objectivity a witness brings to the courtroom are the best tools for communicating effectively with a judge and jury. Some attorneys advise professionals testifying in court to consider the courtroom a stage for a theatrical performance calculated to elicit a desired response. That is bad advice. Likewise, a common mistake is to think that the way to communicate in the courtroom is to act like a lawyer. Although it is important to understand how lawyers work and how to communicate with them, the witness has a different responsibility from the lawyer's. The witness's duty is best done by maintaining the highest ethical standards of one's own chosen profession.

Professionals may appear in court either as fact witnesses, who testify to events within their own personal observation or knowledge, or as expert witnesses, who are retained by one side or the other to provide an informed opinion on matters beyond the scope of the layperson's knowledge, such as the standard of care in a medical specialty. The defendant in a medical malpractice case, for example, would testify as a fact witness, while expert witnesses would be retained to testify for either the plaintiff or the defendant. Although the duties of a professional who is a fact witness and one who is an expert witness are quite different, certain principles apply to both.

Increased scrutiny of expert professional testimony has been brought about by the U.S. Supreme Court's much-discussed Daubert [1] decision in 1993. In Daubert, which concerned the admissibility of expert testimony about the birth defects allegedly caused by the prescription drug Bendectin, the Court responded to the growing importance of advanced science and technology in courtroom testimony. Ruling that the Federal Rules of Evidence had set appropriate (but not rigid) limits on the admissibility of purportedly scientific evidence, the Court affirmed that the trial judge must make the determination of admissibility so as to ensure that an expert's testimony is both reliable and relevant. When a psychiatrist's expert testimony fails to meet these criteria, as when the methodology used to support the opinion is found by the trial judge to be unreliable, such testimony is disallowed with explicit reference to Daubert (as in Gier v. Educational Serv. Unit No. 16). [2] Similarly, the Daubert language of reliability is being used to disallow testimony on the basis of well-established clinical and forensic standards. [3] Thus, in the Daubert atmosphere, professional standards become legal standards.

Although the Daubert ruling applies only to expert testimony, professionals who testify as fact witnesses, such as defendant physicians in malpractice cases, should be aware of it as well. In the first place, defendants who are professionals can work more effectively with colleagues who are retained as expert witnesses on their behalf if they understand what an expert needs to do. Secondly, even defendant physicians testifying as fact witnesses increasingly will be held to the standards of expertise and objectivity that Daubert has set, at least by association, for all professionals testifying on complex matters.

The impact of Daubert on the evaluation of not only expert but also fact-witness testimony was made explicit by the Second Circuit Court in 1995 in Borawick v. Shay. [4] The court, using a case-by-case or "totality-of-the-circumstances" standard, ruled that a plaintiff's testimony about childhood sexual abuse, based on memories allegedly recovered through hypnosis, was inadmissible because her hypnotist lacked adequate academic qualifications and had not kept sufficient records of her hypnosis to corroborate her testimony credibly. Moreover, the plaintiff's allegations of abuse were inherently incredible. The court noted that although the Daubert ruling on admissibility did not apply to fact witnesses' testimony, even if it were applicable, it would allow for the totality-of-the-circumstances approach used by the court to rule the plaintiff's testimony inadmissible. In the words of one commentator, [5] "Lawyers and trial courts must now think as scientists do" (p. 49). By extension, so must testifying clinicians, as applied scientists.

Foundations of Effective Testimony

The witness's responsibility begins long before entering the courtroom. In addition to gaining a thorough understanding of the issues specific to the case, there is a more general type of preparation for being an effective witness. This preparation involves mastering the principles of ethical and effective testimony, beginning the dialogue with the attorney that will continue throughout the case (and will be enlarged to include the jury or judge), and confronting unspoken emotional dynamics that might interfere with clear communication. If these foundations are in place, the witness can approach both direct and cross-examination more confidently.

Basic Principles

Ethical, effective testimony is an application of certain fundamental principles, which may be summarized as follows:

  1. At its best, a trial can be an extended "continuing education" dialogue for all concerned: the witness, the attorney, the judge, and the jury. Learning and teaching are ongoing. If you listen and keep your own mind open, you will be in a good position to educate your attorney, the finders of fact (judge or jury), and even a good cross-examining attorney.
  2. The primary goals of a witness testifying on matters of professional expertise are as follows:
    • to communicate the truth to the jury in an ethical, objective, and effective way
    • to maintain your autonomy, authenticity, and integrity
    • to uphold the values of your profession
    • to interact with attorneys and with the judge and jury in an atmosphere of mutual respect
    • to engage in an ongoing dialogue with your attorney so that, together, you can educate as well as learn from the judge and jury as to what questions each may have
    • to speak directly to the issues
    • to make complex matters understandable without oversimplifying
  3. Tricks and formulas are no substitute for a thorough and deep understanding of the facts of the case and their interrelationships. Resist any attempts to be portrayed as a performer or magician, whether these come from an opposing attorney's adversarial projections or your own attorney's well-intentioned projections. Instead, you want to present yourself as just what you are — an authentic, compassionate, but objective seeker of understanding. Whether as a fact witness (treater) or an expert witness (evaluator), you first use your deep knowledge of the case to arrive at your understanding, and then you communicate it as a professional.
  4. The pitfalls for a witness to avoid include the following:
    • grandiosity or false humility
    • verbosity or non-communicativeness
    • adversarial partisanship or complacent detachment
    • overcomplexity or oversimplicity
Understanding Projected Affects

Psychiatrists and other practicing clinicians who testify either as expert witnesses or as fact witnesses need not and should not leave their understanding of human beings behind at the courtroom door. A case may well be influenced by unspoken witness attitudes which are nonetheless apparent to the observing juror. Particularly for a defendant accused of negligence, it is all too easy to project feelings of guilt or shame that may be taken as confirming the jury's suspicions. Other projected affects that can undermine a witness's credibility are fear of the process or outcome, anger at one's accuser or the opposing attorney, arrogance (perhaps in compensation for guilt or fear), and false humility and condescension toward the jury.

If you are the defendant, it is best to deal with feelings of pain resulting from the tragic outcome before you enter the courtroom. If you feel guilty or ashamed about anything related to the case, talk about it with your attorney and/or expert witness or with your own therapist before testifying. (Your attorney may not be able to help you deal with your feelings, but he or she needs to know how they may affect your testimony.) If, on reflection, you conclude that you have been negligent, leading to the negative outcome in question, direct your attorney to settle the case. Do not allow false pride to get in the way of a just settlement. On the other hand, if you conclude that you have not been negligent, allow yourself to feel regret over the outcome without assuming unjustified blame on the witness stand.

Another type of emotional dynamic to take into account is the typical fantasies of perfection encouraged by plaintiffs' attorneys in malpractice cases, which the defendant may pick up and reflect to his or her disadvantage. Among these fantasies are:

These fantasies are to be countered by clear testimony by both the defendant and expert witness delineating the real standard of care and the limits on a physician's knowledge, power, and presence under actual conditions of prospective uncertainty.

In defending against claims of physical and/or emotional trauma, [6] it is possible that the judge and jury will feel some identification with the plaintiff's alleged trauma and therefore will, in varying degrees, process the testimony they hear as if they themselves had been injured. Or they may avoid such identification by taking the attitude that "it could never happen to me." The professionally informed witness avoids both theatrics and superficial detachment by creating and maintaining an atmosphere of calm, reasoned deliberation in the face of heightened emotional pressure.

Direct Examination

A common mistake of both witnesses and attorneys is to focus on cross-examination to the point of underpreparing for direct examination, It seems natural to take the direct examination for granted, since the questions are coming from a friendly source. This approach is shortsighted, however, since direct examination is your only chance to present your case in an accurate, clear, and convincing narrative.

One of the shorthand decision strategies that people use to process and act on information [7,8] is called anchoring and adjustment. As applied to jury decision making, this means that the juror makes a provisional judgment on the basis of earlier testimony and then adjusts that judgment on the basis of later testimony. Jurors may also use other, counterbalancing heuristics that give greater weight to the testimony heard more recently. Nonetheless, the likelihood that some jurors "anchor" their opinions on the direct examination of a witness, thus reducing the potential impact of cross-examination, suggests that those who do not prepare carefully for direct examination do so at their own peril.


Your role as a witness differs from a stage performance in being guided by the ethical imperatives of honesty and objectivity. These standards have been articulated most explicitly for forensic psychiatrists. [9] They can be especially difficult to implement in cases where there is a blurring of boundaries between clinical and forensic goals — for example, when a treating clinician testifies even as a fact witness for a patient involved in third-party litigation. The clinician, whose task is to alleviate suffering, should disqualify himself or herself from serving as an expert witness, whose duty is to be objective and to serve the goals of justice. [10]

Preparation for direct examination is just one pivotal moment in a dialogue with your attorney (or, in the case of an expert witness, the retaining attorney) that should begin early and continue to influence the conduct of the case right down to the closing arguments. Just as testifying is not a performance, preparation for testimony is not a rehearsal. Rather, it means achieving a deep understanding whereby you can communicate effectively both with your attorney and with the judge and jury. If the case is justly settled or dropped, then this deep understanding will have achieved its purpose without your having to testify. If you do go to court, your attorney will be communicating with the jury a good deal more than you will. Therefore, you will convey your understanding far more effectively if your attorney shares it in sufficient depth.

One purpose of this dialogue is to make sure your attorney has a sufficiently firm understanding of issues pertaining to complex scientific evidence to ask focused and relevant questions. To foster this understanding in complex cases, it can be useful to have an expert consultant in the presentation of scientific evidence available to you and your lawyer — a decided asset in satisfying the Daubert criteria. [11] Sometimes this expert consultant can also serve as the expert witness. Such a consultant not only can strengthen your preparation for direct examination, but can also help you withstand misleading cross-examination.

The pre-trial phase also gives you an opportunity to confront any problems that arise in communicating with your attorney. On your side, beware of projecting arrogance or superiority when educating the attorney on scientific matters. The imperial witness may find his grandiosity handed back to him on the witness stand with an "et tu, Brute" (even unintentionally from his own exasperated attorney), along the lines of Julius Caesar's dying words to Brutus in Shakespeare's tragedy of collegial betrayal. As in medical school or any other setting, the best way to educate is to support honestly the self-esteem of your student. If your attorney appears to disrespect your professional knowledge, try to move the attorney away from such a narcissistic position by modeling a climate of mutual respect. If that fails, raise the issue directly and without delay as a matter to be discussed and worked through. Otherwise, you need to withdraw from the case (as an expert) or change attorneys (as the defendant).

Coordination with Opening and Closing Statements

An additional benefit to be gained from close communication between witness and attorney is the achievement of thematic continuity from the beginning to the end of the trial. If the burden of the case rests largely on your testimony on medical and scientific issues, it will be advantageous to have the themes of your testimony reflected in your attorney's opening and closing statements. At the same time, you must balance the need for coherence between your testimony and the overall narrative presented to the finders of fact with the imperative of authenticity aspired to by Polonius in Hamlet: "To thine own self be true."


The credentialing of a witness should be completed quickly and efficiently at the beginning of the direct examination. Credentials most relevant to the case should be highlighted. In a medical malpractice case, these credentials include any documented expertise in medical decision making. Your professional fees, either as an expert witness or as a clinician, should be stated matter-of-factly. Make clear that you are paid for responsibly exercising your professional judgment, not for your testimony, opinions, or clinical outcomes, as the case may be. More important than anything said in the credentialing phase, however, is your overall demeanor and that of your attorney. If your attorney treats you as a stage prop, a hired gun, or a guilty party, so will the jury.

Narrative Structure

A witness's testimony can be heard as a narrative that weaves together many details into a coherent structure of meaning. [12] An expert witness's narrative consists of a clearly and convincingly stated opinion, followed by the basis of the opinion — that is, the data and reasoning by which it was reached. The expert reviews both supporting and opposing evidence, acknowledges gaps in documentation and difficulties in assessment, and shows how it was still possible to reach an opinion with reasonable medical certainty. A fact witness's narrative takes a different form, that of a chronological, "once upon a time and place" sequence of observations and decisions made in the course of treatment. Thus, as explained in the next section, both kinds of witnesses are testifying as to the decision-making process in the case. The difference is that the treating physician as fact witness testifies from the perspective of memory, whereas the expert witness reconstructs the same sequence of events by applying a general understanding of decision-making processes to the specific context at issue.

Whether you are testifying as a fact witness or as an expert witness, of course, be truthful and thorough in laying out your narrative. Admit when you don't know or need to think about something. By the same token, apparent contradictions need to be acknowledged, since it is not apparent paradox that undermines a witness's effectiveness, but glib superficiality or unnecessary abstruseness. Finally, while you do need to avoid boring the judge and jury, don't be afraid of repetition. You are trying to create a dialogue with people who are less informed and may even be more anxious than you. People who are anxious may not hear, understand, or remember everything the first time around.

Reconstructing Decision Making Under Conditions of Uncertainty

One key to a successful defense in a medical malpractice case is to free the jury's attention from exclusive focus on the tragic outcome (and the overwhelming feelings associated with it), so that the jury can also consider the decision-making process that occurred before the outcome could be known. Absolute certainty is a luxury of hindsight. On the other hand, the exercise of professional judgment requires reasonable and prudent decision making under some degree of uncertainty. Before the fact, all decision making in medicine, [13] including psychiatry, [14] requires working with degrees of uncertainty and turning them into estimates of probability. Since it is impossible to eliminate risk entirely, the communication of risk (both prospectively, to the patient, and retrospectively, to the jury) becomes an essential skill requiring subtle, in-depth understanding of context-sensitive professional decision-making processes. [15]

If the defense does not lay out the process of decision making and risk assessment from the prospective viewpoint, involving some degree of uncertainty, the jury may be left only with the plaintiff's hindsight perspective. It is advisable, therefore, that the defendant physician remember accurately his or her own decision-making process in the course of treatment. That will enable an expert in decision making to reconstruct the process by an assessment of both physician and patient decision making embedded in the informed-consent dialogue and the clinical context.

An example of such a successful defense, against unfavorable odds, is the case of Drewry v. Harwell. [16] A young woman who had suffered chronic pelvic pain sued her obstetrician/gynecologist following a hysterectomy during which an embryo of one month's gestation was discovered and, as a necessary consequence of the surgery, aborted. The plaintiff alleged that the physician had performed an unwanted procedure, causing an unwanted abortion. An additional charge of sexual misconduct was dropped before trial, subsequent to a court-ordered forensic psychiatric examination of the plaintiff for her claims of emotional and physical damages. The examining forensic psychiatrist was nonetheless able to use the results of the examination in testifying at trial as to the informed-consent and decision-making processes engaged in by the physician and patient.

This case had the potential for a major damage award based on the jury's sympathy for the plaintiff, a woman who had lost her baby and could never have another. The defense, however, presented a forensic psychiatric evaluation which relied on the testifying psychiatrist's analysis of the processes of medical decision making and informed consent. This analysis was based on his expertise in the area as well as on the data gathered in the court-ordered examination described above.

In his direct examination, this witness drew a decision tree on the courtroom blackboard to represent the choices made by the physician and patient at each stage of the process. He was thus able to help the jury move from a "hot" (emotional) to a "cool" (reflective) consideration of the issues in the case. Having established that framework, he testified that the physician and patient had appropriately considered the risks and benefits of four possible courses of action: medical treatment, psychiatric treatment, surgery, or no treatment. The patient had been competent to give informed consent and had in fact done so, both formally and in the course of the informed-consent dialogue. On the basis of these facts, the witness concluded that the physician's actions met the standard of care in the areas of medical decision making and informed consent. This testimony was reinforced by a psychological analysis of why the plaintiff might, in retrospect, have unwittingly revised her memory of the choices she had actually made.

Anticipating Cross-examination

The dialogue you have with your attorney on direct examination should include anything that, on cross-examination, might confuse your testimony as either a fact witness or expert witness. To make sure you have a complete understanding of the basis of your testimony, it is important to consider alternative, especially adversarial perspectives. Your direct examination should anticipate most of the significant issues the cross-examining attorney will raise.


In our adversarial system, cross-examination has several legitimate functions: (1) to expose weaknesses in the opponent's case, as reflected in the testimony of the opposing witnesses; (2) to bring out the strengths of the cross-examining attorney's own case; (3) to expose any problems reflecting on the credibility of an opposing witness's testimony, such as bias, lack of opportunity to perceive the facts at issue (for a fact witness), or inadequate professional training and experience (for an expert witness). The attorney who vigorously pursues these goals is providing effective advocacy in keeping with the ethical standards of the legal profession. Unfortunately, in the heat of a trial, even an ethical attorney may stray from this model of effective cross-examination and resort to tactics designed to mislead and confuse. These tactics usually prove ineffective against a witness who is thoroughly grounded in the issues of the case and is honest and straightforward in testimony.

You must prepare for cross-examination before you take the stand. Cross-examination is a continuation of direct examination in more than a temporal sense, since you will want to maintain in cross-examination the basic themes you have laid out in response to your attorney's questions. Typically, the cross-examining attorney is not trying to argue you out of your position, but rather to break the narrative flow of reasoning, or of time and space, that you have established. Your job is to maintain that flow in the face of challenges to your character, credibility, and the content of your testimony.

Principles for Responding to Cross-Examination

The following are principles of effective testimony applied specifically to cross-examination:

Avoid the natural tendency to identify with the aggressor. You can protect yourself from the aggression of some cross-examiners without being aggressive yourself. You may, however, need to set limits on the cross-examiner who is verbally abusive. As explained in a later section, this is done by stating exactly what the cross-examiner is doing.

Maintain mutual respect. Follow the Golden Rule when you take the stand.

Maintain a spirit of inquiry. Your mission is still to seek understanding of the relevant issues in the pursuit of justice. Your cross-examination testimony should continue the inquiry begun in direct examination.

Maintain professional ethics. Stay on the high road (without being holier-than-thou) even if the cross-examining attorney tries to bring you down to the low road.

Listen and learn. Listen carefully and respectfully, whether it is your own or the other side's attorney who is questioning you. The following nine ways of not listening [18] are more likely to occur in an adversarial atmosphere. Indeed, some cross-examining attorneys may try to provoke these various forms of inattention in a witness to reduce the effectiveness of testimony:

Mind Readers wonder, "What is this person really thinking?"
Rehearsers think about what they're going to say after the speaker stops talking.
Filterers hear only what they want to hear.
Dreamers drift off and may ask for repetition.
Identifiers relate what is said to their own experiences.
Comparers are provoked by the messenger to respond personally to being insulted and thereby neglect the message.
Derailers change subjects too soon or too often due to lack of interest.
Sparrers belittle the value of what is said.
Placaters agree with everything to avoid conflict.

Don't be led into overcomplexity or oversimplicity. A cross-examining attorney may try to portray you as someone who obfuscates the issues or talks over the heads of the jury. At the other extreme, the attorney may lead you into the trap of oversimplification so as to expose your inadequate understanding of the complexity of the case. You need to keep your balance, steering a course between the Scylla of overcomplexity and the Charybdis of oversimplicity.

The Cross-Examiner's Techniques

Attorneys are taught specific techniques of effective cross-examination. As an example of what you can expect to face, here are law professor Irving Younger's Ten Commandments of Cross-Examination [19] :

  1. Be brief.
  2. Ask short questions using plain words.
  3. Ask only leading questions.
  4. Do not ask a question if you do not know the answer.
  5. Listen to the answer.
  6. Do not quarrel with the witness.
  7. Do not allow the witness to repeat his or her direct testimony.
  8. Do not permit the witness to explain.
  9. Avoid asking one question too many.
  10. Save the explanation for summation.

You must also be prepared for the possibility that a cross-examiner will go beyond these standard prescriptions and engage in diversionary tactics that run counter to ethical and effective courtroom practice. You should be aware of the tricks a cross-examining attorney may use to distort your testimony, but you should not respond in kind. In many instances, such tricks will elicit sustainable objections from your attorney. When you are left to respond on your own, the suggestions that follow will help you do so.

The Witness's Bill of Rights

You can continue to be an effective and ethical witness when responding to cross-examination. You can protect yourself while upholding your professional dignity and ethics by employing the remedies listed in what we call a "Bill of Rights" for witnesses, which is actually a list of standard courtroom procedures. As a witness you have the right...

  1. To give and expect mutual respect.
  2. To ask the cross-examiner to rephrase ambiguous or misleading questions.
  3. To ask the judge whether the material asked for is privileged.
  4. To refuse to answer questions you do not understand (instead, ask the attorney to repeat or clarify).
  5. To say you don't know when you don't know.
  6. To ask the judge whether you can qualify or expand on your answer when a simple yes or no won't do.
  7. To ask to complete your answer when interrupted.
  8. To refer to written records or notes (which the other side will then have the right to examine).
Character and Credibility

Many attorneys begin by questioning the character and credibility of the witness they are cross-examining. They may hone in on your fees, motives, training or experience in relevant areas, presence or absence of academic credentials, and how much or how little you have treated or testified about this type of case. Part of the purpose of this opening phase is to point out to the jury any weaknesses in your professional training and qualifications.

Fees. With an expert witness, a cross-examining attorney may give the impression that getting paid for your professional work makes you a hired gun. Testify truthfully as to how much you are being paid, but make clear that you are paid for time spent exercising professional judgment, not for your testimony.

A fact witness can expect questions about clinical fees, such as "Is it not correct that you were paid about $20,000 by Mr. G. for the care you provided him, and now he's dead?" This question is designed to make you look mercenary as well as incompetent. You must put these innuendos in perspective, showing that you are not paid for the outcome, but, again, for the exercise of professional judgment in clinical care. Otherwise, no one could treat very sick people. You can make these general points while bringing in specific reminders of your direct narrative testimony by answering, "Over the past four years, during which Mr. G. had three hospitalizations and three suicide attempts, I saw him for about 200 visits, and my average fee is $100 an hour." This shows how you have expended time to gain a deep understanding.

Writings and public appearances. Anything you have written or said in medical textbooks, journal articles, or taped lectures to colleagues or attorneys is fair game. If, as an expert witness, you teach your colleagues about testifying in court (as in this chapter), you may be defamed as a hired gun. Again, you respond by placing any quotes in context and straightforwardly (not defensively) demonstrating that your work is grounded in the ethics of your profession.


In the next phase of cross-examination, the cross-examiner turns to the content of your testimony. As the interchange draws to a close, an attorney who believes that his or her case is weak may shift into damage control, resorting increasingly to diversions to make the whole cross-examination, and your testimony, appear to have been a contest or debate. In this way the attorney hopes to undercut the meaningfulness of your testimony. Here are some of the many tricks you can expect in this phase, along with some suggested ways of answering them. Note that the latter do not involve answering one trick with another, but simply continuing to seek honestly an objective understanding in the pursuit of justice, in keeping with the ethical guidelines of the American Academy of Psychiatry and the Law. [9]

The "shell game" (misleading facts or inferences). A trick question may appear in the guise of a simple statement of chronology: "Isn't it true that you saw Mr. G. on March 20, 1995?" When you say that you did, the attorney smugly reveals that it was March 21. You can avoid this trap by answering, "I saw Mr. G. on or about March 20, 1995" or "I'm not sure I can remember the exact date, but it was in March 1995."

What is true for dates is also true for quotations of things you have said or written. If you don't have your original statement in front of you, don't agree that the wording is accurate without checking. Your job is not a recitation of facts, but the communication of a reasoned opinion. You can put irrelevant memorization into the perspective of "I'm here to present my understanding of what I did and why" by saying as much when called for.

Out-of-context quotes. Anything you have said or written before (from teaching manuals to depositions) may be brought up as a challenge to your statements or actions in the case at hand. This is true both for the fact witness who has taught or written about relevant medical diagnoses or treatments and for the expert witness who has written about relevant medicolegal issues. "In 1986, in a case similar to this one, you said such and such. And yet now you say thus and so. Which is your true position, Doctor?" If the quote sounds unfamiliar, answer that you would like to see it in context. If the quotation is clearly misleading out of context, feel free to say so. Then your attorney can allude to such opposition tactics in closing argument.

An apparent contradiction between your past and present views can, when appropriate, be addressed by saying, "Thank, you for reminding me of what I said ten years ago. As I recall, I said that because of the following circumstances in that particular case.... Now this particular case is different because...." This also demonstrates how you have scrupulously paid attention to each individual patient/evaluee.

Imprecise characterizations. Don't give overly simplistic yes-or-no answers to questions phrased in vague generalities, such as "Isn't it true that you've been seeing Mr. G. for a very short (or very long) time?" when you answer this kind of question without qualification, you buy into what may be a mischaracterization of the situation. Just stick to the facts: "I saw Mr. G. for 200 hours over four years."

"Vain Caesar"/compound questions. Questions like the following simultaneously raise doubts about both your character and content: "Doctor, you direct the mental health program in New York City. And isn't it true, Doctor, that Mr. G. is now dead?" Here the attorney wants to make you look self-important while implying that the patient's death is your responsibility.

You should never be compelled to answer such compound questions. While you are pausing to process the question (which you should always do before answering), your attorney should object, and the judge should sustain the objection. If this does not happen, repeat the question silently to yourself. Can you really answer the question "yes" or "no" as worded, or do you need to clarify it? If it is a compound question, break it down and answer each part separately: "Yes, I have been medical director of the program for the past six years, during which I've treated over 600 patients. Of course, it is a tragedy that Mr. G., whom I also treated, is now dead."

"When did you stop beating your wife?" Here a question of chronology is reduced to an accusation: "When was it that you finally figured out that Mr. G. was suicidal? Was it only after he committed suicide?" You can answer by refraining the question as follows: "From hindsight it's easy to see that Mr. G. was suicidal. But when I assessed him for two hours, I checked for the following symptoms and signs____" Instead of damaging you, such questions can highlight a series of details that the jury might not have remembered from your direct examination.

Double-negative questions. A simple way of trying to confuse you — and the jury — is to pile on the negatives: "Isn't it true that you didn't....?" Again, a question that is unnecessarily complicated should be disallowed by the judge. If it is not, by pausing before answering, you can take apart the question and either answer it correctly or ask for a clarification: "Is this what you mean?" or "I don't understand." In other words, if the attorney is inviting you to play such verbal tennis, don't be afraid to decline the invitation and stick to ethical and effective testimony.

"Yes, yes, yes, no" questions. In what resembles a children's word game, a cross-examiner may hit you with a rapid-fire series of questions, all of them to be answered "yes," until the one that requires a "no" answer goes right by you. You end up saying, "Yes, yes, yes, yes — oops, what did I say?" Some cross-examining attorneys see the professional who is testifying as a master chess player and themselves as novices who can beat the master only in a speed game. By pausing to reflect before answering each question, you won't get caught up in the momentum of mindlessness.

The silent treatment. In Zen this is called "the question of no question." You answer one question, and the attorney says nothing. You can respond by looking with the jury at the attorney. Or ask, "Is there any other way I can help you?"

Interruption. If the cross-examiner tries to cut you off before you have finished answering, say, "May I explain?" If the attorney will not let you do so, the jury may well take away an accurate impression that the attorney's tactics are not in keeping with the search for truth and justice.

Sarcasm. If you maintain your professional demeanor, any sarcasm directed at you will cause the cross-examining attorney to suffer by contrast with your effort to formulate thoughtful answers. If the sarcasm is persistent or seriously out of line, your attorney can object, or you can just ask the judge, who may admonish the offending attorney. Finally, you yourself can call attention to the attorney's behavior: "Well, if I can separate the content of your question from the sarcastic language in which it was couched...."

Irrelevant, intrusive questions. Pause for your attorney to object.

Re-direct Examination

In some complex cases the decisive testimony is given in re-direct examination. Often, the questions asked on re-direct are in response to what transpired in cross-examination. You can always respond on cross-examination to a question requiring a complex answer by saying, "There is no simple way of answering this question yes or no." If you do not or are not allowed by the cross-examining attorney to clarify, your attorney can, on re-direct, ask you to complete your answer in your own way.

With or without such collaboration, it is the attorney's responsibility to listen to the cross-examination with a view toward re-direct. Cases have been lost unfairly because an attorney was not sufficiently attentive to a witness's testimony on cross-examination to be able to clarify or build on it on re-direct.

Recommendations for Testifying

The following recommendations (some of which have appeared in other sources [20]) distill some of the principles and concepts discussed above into practical guidelines for defendant clinicians as well as for expert witnesses. Keep in mind that, in line with the Daubert framework, the judge who sets the tone for courtroom proceedings will be assessing the relevance and reliability of all testimony in terms of the professionalism with which that testimony is presented.

  1. Don't lose the forest for the trees. For example, don't be afraid to admit an oversight such as the failure to record something you (or the treating physician) did. It's not how you treated the record; it's how you treated the patient.
  2. Don't lose trees for the forest. Although any particular detail usually will not by itself trip you up, you do need to lay out and explain a whole framework of details that constitutes your (or the treating physician's) handling of the case. It is essential to break down the components of the decision-making process to show whether the treating physician met the standard of care and acted in an ethically and professionally responsible manner. Familiarity with the use and presentation of medical decision trees can be particularly helpful in this area. [13]
  3. Don't deny or overemphasize uncertainty. Distinguish clearly between uncertainty and confusion, and communicate awareness of uncertainty in a manner that is not confusing. Any effort by the plaintiff to hold up a standard of absolute certainty must be met with a clear demonstration that a degree of uncertainty is a condition of all medical decision making. [13] By the same token, avoid the temptation to take refuge in the extreme relativism of "it is all uncertainty" or "it is all judgment," which denies the real knowledge and responsibility professionals are expected to exercise.
  4. Use common sense, but don't be a slave to it. When common-sense reasoning and analogies will help you communicate effectively, by all means use them. However, when common sense would lead the jury astray in understanding complex scientific or technical matters, feel free to address the paradoxes that put some subjects outside the boundaries of ordinary everyday thinking.
  5. Speak to the jury and "listen" to their feedback. Professional expertise is beneficially applied in monitoring the dialogue you have with the jury. By speaking directly with the jurors and avoiding obfuscations such as engaging in a meaningless debate with an aggressive cross-examiner, you can observe jurors' nonverbal reactions and make educated guesses about what the jury seems to be understanding or not understanding. Do you sense that the jurors are puzzled, skeptical, or inattentive when it comes to specific areas of testimony? Share these observations with your attorney, who should be watching for the same things. The attorney can then decide what points need to be clarified in re-direct examination and/or closing argument.

If you believe that you are at a disadvantage because the other side is persistently oversimplifying complex matters, your attorney can file a motion to allow jurors to question witnesses directly under the judge's supervision. This procedure, which moves jurors' reactions from the nonverbal to the verbal realm, is vastly underutilized. [11,21] Some of the most useful questions a witness can be asked come from the finder of fact (judge or jury), precisely because the finder of fact does not operate out of an adversarial position, as do the attorneys for the contending parties.


Courtroom testimony by a professional is best understood not as a debate, but as a dialogue, informed by a deep understanding and a striving for meaningful truth. In the end, the most ethical testimony is also the most effective.


  1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).
  2. Gier v. Educational Serv. Unit No. 16, 66 F. 3d 940 (8th Cir. 1995).
  3. Rodriguez Cirilo v. Garcia, 908 F. Supp. 85 (D.P.R. 1995).
  4. Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995).
  5. Levy DM: Scientific evidence after Daubert. Litigation 22(1):48-52, 1995.
  6. Read GC: Defending against the emotional distress claim. The Brief, Winter 1996, pp. 14-19, 42-49.
  7. Hogarth RM: Judgment and Choice: The Psychology of Decision. Chichester, U.K., John Wiley, 1980.
  8. Kahneman D, Slovic P, Tversky A (eds): Judgment Under Uncertainty: Heuristics and Biases. Cambridge, U.K., Cambridge University Press, 1982.
  9. American Academy of Psychiatry and the Law: Ethical Guidelines for the Practice of Forensic Psychiatry, 1991.
  10. Bursztajn HJ, Scherr AE, Brodsky A: The rebirth of forensic psychiatry in light of recent historical trends in criminal responsibility. Psychiatr Clin North Am 17:611-635, 1994.
  11. Bursztajn HJ, Saunders LS, Brodsky A: Daubert without prejudice: Achieving relevance and reliability without randomness. J Mass. Acad Trial Att'ys 4(1):54-58, 1996.
  12. Pennington N, Hastie R: The story model for juror decision making. In Hastie R (ed): Inside the Juror: The Psychology of Juror Decision Making. Cambridge, U.K., Cambridge University Press, 1993, pp. 192-221.
  13. Bursztajn HJ, Feinbloom RI, Hamm RM, Brodsky A: Medical Choices, Medical Chances: How Patients, Families, and Physicians Can Cope With Uncertainty. New York, Routledge, 1990.
  14. Hamm RM, Clark JA, Bursztajn HJ: Psychiatrists' thorny judgments: Describing and improving decision making processes. Med Decision Making 4:425-447, 1984.
  15. Fischhoff B: Risk perception and communication unplugged: Twenty years of process. Risk Analysis 15:137-145, 1995.
  16. Drewry v. Harwell, et al., No. CIV-94-1600-T USDC WD (Okla., 1995).
  17. Janis IL, Mann L: Decision Making: A Psychological Analysis of Conflict, Choice, and Commitment. New York, Free Press, 1977.
  18. The writing lab. Unpublished manuscript, Department of English, Purdue University.
  19. Asbill HW: The ten commandments of cross-examination revisited. Criminal Justice, Winter 1994, pp. 2-6, 51-54.
  20. Brodsky SL: Testifying in Court: Guidelines and Maxims for the Expert Witness. Washington, D.C., American Psychological Association, 1991.
  21. Shrallow C: Expanding jury participation: Is it a good idea? U Bridgeport L Rev 12:209-246, 1991.