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.