Forensic Issues: Testifying in Court

Question 1

T/F- Lawsuits are much more of a reality these days for SLPs

Answer 1

True

Question 2

What did the ASHA presenter say about justice?

Answer 2

“There is no such thing as justice. It’s a game. Somebody wins and somebody loses.”

Question 3

What is important to remember about conversations, and your reports in regards to subpoenas and court.

Answer 3

Treat every conversation you have and every report you write as potentially ending up in court

When you write a report, ask yourself “Is this credible if it ends up in the hands of a lawyer?”

Your reports and notes can be subpoenaed without your knowledge

Question 4

Is it better to have conversations over the phone or in person?

Answer 4

In person!!!

Don’t say anything over the phone!!

Have all conversations in person, and ideally record these

Question 5

How do you prepare for court in regards to appearance?

Answer 5

Dress conservatively

Research says: best colors are blue for men and black for women in terms of “looking believable”

Wear conservative shoes and minimal jewlery

Question 6

What is good information to know about going into the courthouse?

Answer 6

Go early and check things out

Know where bathrooms are

Be able to walk straight to the witness stand

It makes a good impression on the judge if you are early

Question 7

What should you bring to the courthouse with you?

Answer 7

Bring materials that you need (e.g. reports)

Question 8

What should you do before going to court?

Answer 8

It’s very important to review reports and documents before you get on the stand

 You are nervous enough already

 Witnesses who take long pauses to dig through      documentation to answer questions come across as sloppy, unprepared, and less credible 

Also, go over materials (e.g. reports) with your lawyer

Question 9

What is important to remember about what you say in court?

Answer 9

Anything you use in your testimony may be examined in its entirety by opposing counsel

Question 10

What should you do if you see a big flaw in any of the reports?

Answer 10

Bring this to your attorney’s attention before you go to court

This is better than having opposing counsel find it and attack it live!

Question 11

When talking to a lawyer/firm, what should you ask?

Answer 11

Who is assigned to your case

Ask what they plan to bring out in your testimony

Also ask what they think will be the focus of cross-examination

Question 12

What should you do while waiting for your turn in court?

Answer 12

Be quiet, attentive, and respectful

Don’t eat, drink, text, or talk on your cell phone

Reading a book is OK

Don’t get the judge mad at you before you get up to testify!

Question 13

What are U.S. Department of Justice, 2015 guidelines about being on the stand?

Answer 13

You may be asked to leave when others testify

Stay alone; don’t sit with anyone else

When testifying, don’t cross arms or legs

No fidgeting, and keep your hands away from your mouth

Don’t nod or say “um hum” speak!

Speak slowly and clearly

Attorneys may attack you and try to discredit you– this is a good sign

Opposing attorney may try to wear you down

Always remain CALM; do not get upset! Just take a deep breathe

Question 14

Look at slide 15. Do we need that?

Answer 14

.

Question 15

What are some other things to remember about being on the stand?

Answer 15

Don’t go beyond the data, purpose of the evaluation, or your scope of competence

If you are unsure of something, you can ask for a repetition

When someone uses long, confusing questions you can ask them…
“Can you please put that into a simple declarative sentence?”

Take your time in answering questions– no need to rush

Breathe deeply if needed

Question 16

What is OK to say on the stand?

Answer 16

“I don’t understand”

“Will you please rephrase that?”

Be confident and look at them right in the eye

Question 17

What does Roseberry say about sticking to the facts on the stand?

Answer 17

Do not show emotion or feeling

If you get mad, you lose credibility

Do not ever speculate

You can say “That is speculative; I don’t know.”

Question 18

What are some things you can say when attorneys try to make you say “yes” or “no”

Answer 18

“At times….”

“The general rule is…”

“With exceptions…”

“Your honor, if I answer yes or not, I’ll be giving information. May I explain?”

“Under certain conditions…”

“I don’t remember”

Be succinct– do not volunteer extra information

“That’s my expert opinion”

“I understand that you are asking me for a ‘yes or no’ answer here, and I could answer you in that way. However, if I do, it will be an incomplete answer and I don’t want to mislead you or the court.”

 This makes you look reasonable and logical; if the attorney still insists on yes or no, he looks like a jerk who is pushing his own agenda. It also provides an issue for re-direct from your own lawyer.

Watch “yes” answers- they try to lead you down the garden path (answering several yes questions and try to trick you with a question that we should be answering no)

Question 19

What are some other things you can say back to the attorney?

Answer 19

“Are you being paid for your testimony?” “No, I’m being paid for my time and expertise”

Take your time; you can say “I need a moment”
Do not offer additional information

 Let the uncomfortable silence just sit there!

If the attorney interrupts you, say “I’m not finished” and then go on

If asked a compound questions, say “Which part of the
question would you like me to answer?” (e.g., “When you test Jaime, was he attentive and did he seem to comprehend the directions?”)

Question 20

How do you address people in court?

Answer 20

Call the judge Your Honor or Judge

Use “sir” and “ma’am” in your answers when addressing the attorneys

Question 21

Is it ok to ask the judge for a break?

Answer 21

Yes

Question 22

What do you do if someone objects?

Answer 22

Just stop talking

“Overruled” means you can answer

“Sustained” means you should not answer; wait for the next question

Question 23

What do you do if the attorneys try rapid-firing questioning?

Answer 23

Take your time in answering

 This helps you, and gives your lawyer time to object

Question 24

What can you say if they ask “Is that all?”

Answer 24

Say “That is what I can recall at this particular time.”

 This leaves the door open in case you remember something later.

Question 25

What’s important to remember about posture?

Answer 25

Be sure to sit and stand tall

No slouching

Make good eye contact with everyone

Question 26

What is good to remember about looking at your attorney when on the stand?

Answer 26

Don’t look at your attorney too much

 This makes you look like you are asking for help

It is best to look at the jurors as much as possible

Question 27

What’s important about relating to the jury?

Answer 27

They don’t want to be there either

This is an interruption of their lives

When you take the stand, smile at them and say hello

Make the jury feel included– look at them, smile at them during your testimony

Question 28

What should you do when you are done on the stand?

Answer 28

When you are done, thank the judge and jury

Be sure to look at the jury and smile at them as you are leaving the stand