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Steve Hansen: My brief career as an expert witness in court

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Posted: Wednesday, December 4, 2013 12:00 am

It was a December day in the early 1990s when I was asked to testify as an expert witness. It was my first time in a federal courtroom. The pressure was on. I didn’t want to “blow it.”

In our system of justice, there are basically two types of witnesses: There is the expert witness, who has professional knowledge that the court does not have. The other type is the eyewitness, or lay witness, who describes what he or she has seen, heard or experienced.

Lay witnesses are not paid for their testimony, but experts are. Sometimes, they are referred to as “hired guns.” When an expert is retained to support one side, often the other party will counter by using someone with a different professional opinion.

Since this “hearing to show cause” was to take place in San Francisco, I decided to stay with my folks. My father was truly an experienced expert witness. He had been asked on countless occasions to testify, as he was the vice chairman of forensic pathology at the University of California, San Francisco. I knew Dad would be an excellent coach.

My case involved a physician who had committed a serious error during an operation. The state believed it was due to a substance abuse problem, and his medical license was in jeopardy.

This particular case, however, involved his Drug Enforcement Agency Certificate. A private practice physician must have one in order to issue controlled prescription drugs. The feds wanted it revoked, and the doctor’s attorney was attempting to stop that action.

I could not testify as to the competence of the medical procedure in question. But as a psychotherapist, I could shed light on the psychodynamics of his alleged substance abuse.

When an expert is on the stand, things begin with questions about qualifications. They can include formal education, state licensing, faculty appointments, publications and speaking engagements at professional conferences or meetings. Of course, lengthy experience in the area of expertise is also a must.

The opposing side often will try to dirty the waters with inquiries about the quality of one’s education. They will also try to show that the experience of a witness is either irrelevant or inadequate to be classified an expert. In the end, the judge makes the final decision.

During the hearing, I tried to remember some of the points my father had made. Some were as follows: Stay non-emotional. Be honest. If you don’t know, say so. Keep your answers strictly to the question. Don’t volunteer information not asked. Be brief, and don’t confuse the judge with technical language that may not be well-understood.

Expert witnesses are allowed to give subjective opinions, as long as they are factually based. Lay witnesses usually are not, with the exception of what they perceived during an eyewitness event.

The bone of contention in this case was whether the doctor was truly an addict or was operating within the scope of normal medical practice while being treated for back pain.

I opined that the physician’s circumstances did not meet the definition of drug dependency based on various textbook definitions, as well as my clinical experience. Of course, the chief counsel for the government argued the opposite, taking his facts primarily on descriptions presented in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM III). When questioned about this, I remember turning to the judge and remarking that the DSM III was not an all-encompassing treatise on the subject, but rather a summary of various psychiatric disorders. He seemed to agree.

I never knew the outcome of the hearing. When my testimony was completed, I was excused. It was not my job to see this physician safely through his legal gauntlet. Rather, I was being paid to present the facts as I honestly saw them and let the court decide the doctor’s fate, along with all other evidence presented.

After that day, my experiences as an expert witness were few and far between. Some people make a living at this activity. They advertise their craft in professional magazines and are usually available for rather exorbitant fees. Personally, I’m not comfortable in that arena. You see, there’s always someone out there who knows more than I, and at some point in the process, it becomes “game on.”

My preference has always to treat patients and teach. I found these endeavors far more rewarding, as opposed to direct participation in courtroom interactions, rules and procedures.

Steve Hansen is a Lodi writer and retired psychotherapist.

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Welcome to the discussion.

8 comments:

  • Jerome Kinderman posted at 10:19 am on Sat, Dec 7, 2013.

    Jerome R Kinderman Posts: 2323

    Perhaps, Mr. Lauchland. But as someone who worked in the legal field for much of my adult life (while in the Air Force and as a civilian), it was unusual for virtually all parties involved with any legal proceeding to not at least be interested in the outcome. As I wrote earlier, basic human curiosity should have had him at least wonder. After all, another person’s livelihood was at stake - Mr. Hansen’s testimony could very well have tipped the scales one way or the other. Hey, I’m interested in knowing the outcome - and I wasn’t even involved.

     
  • robert maurer posted at 2:32 pm on Fri, Dec 6, 2013.

    mason day Posts: 442

    Very well thought out ,Mr. Lauchland. I think you nailed it.

     
  • Ted Lauchland posted at 1:11 pm on Fri, Dec 6, 2013.

    Ted Lauchland Posts: 253

    Perhaps, Mr. Kinderman. I would be more inclined to think Mr. Hansen simply choose to not get emotionally involved. If he would have sought further information on the case it may have set himself up for failure to be an effective third party professional the next time he was asked.

     
  • Ted Lauchland posted at 12:59 pm on Fri, Dec 6, 2013.

    Ted Lauchland Posts: 253

    Mr. Maurer , I believe you understand my point. The Judge would have thrown the case out just for the attitude he received from me. He would have the power to do what he wanted with me , contempt or otherwise. Extremely disrespectful and arrogant of me. Why would anyone entertain ideas from another person when a response to sharing information is such.

    It kind of relates to why Mr. Hansen didn't choose to follow that direction possibility of his career. People will try to discredit you and take apart your words in the courtroom to prove their point. The Judge attempts to correct attitudes and keep order in his court. Either you enjoy proving your point or you don't. Mr. Hansen said he is a teacher. Almost the difference between a lawyer and a litigator. One enjoys bringing facts and the other enjoys proving the argument.

     
  • Jerome Kinderman posted at 3:03 pm on Thu, Dec 5, 2013.

    Jerome R Kinderman Posts: 2323

    Hardly a “career,” I would think that anyone with enough experience, education and desire to assist would be more than happy to be called upon as an expert witness in a court or hearing. I don’t understand Mr. Hansen’s decision to never again participate in an action as an expert.

    I’m more curious as to why he “never knew the outcome of the hearing.” Basic human curiosity should have been more than enough for him to want to know if his testimony helped or hindered the “cause.” Whatever the outcome, discovering if he was individually helpful might have been advantageous to him as a teacher or “physician.” Perhaps the reason he never participated again was due to never being called upon as a result of the outcome in the case outlined above?

     
  • robert maurer posted at 1:18 pm on Thu, Dec 5, 2013.

    mason day Posts: 442

    I think Mr.Barrow was responding to Mr. Hansen's letter. A yawn is not presentable evidence in court, but it does leave an impression. I tried that tactic repeatedly when I tried to get out of jury duty once and the judge asked me (with potential jurors present) how I would like the consequences of a contempt of court charge. That was embarrassing. There is a case being tried right now where expert testimony from a defense witness may affect or negate one of the charges by the plaintiff in this case.

     
  • Ted Lauchland posted at 1:26 pm on Wed, Dec 4, 2013.

    Ted Lauchland Posts: 253

    Courts expect focus and your ducks in order to not waste time. I've won a small claims case before. Listening carefully and responding to the Judge meant a lot . "Yawning" would have had the case thrown out.

     
  • Eric Barrow posted at 7:41 am on Wed, Dec 4, 2013.

    Eric Barrow Posts: 1448

    Yawn

     

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