FORENSIC ISSUES: TESTIFYING IN COURT

Mom of a future lawyer

I. INTRODUCTION** Lawsuits are much more of a reality these days for SLPs ASHA presenter: “There is no such thing as justice. It’s a game. Somebody wins and somebody loses.”

Remember… 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

Also…. Don’t say ANYTHING over the phone!!!! Have all conversations in person, and ideally record these

II. GETTING PREPARED Dress conservatively Research: best colors are blue for men and black for women in terms of “looking believable” Wear conservative shoes and minimal jewelry yes no

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

Bring materials that you need (e.g., reports) Go over these with the lawyer beforehand Remember that anything you use in your testimony may be examined in its entirety by opposing counsel

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

If you see a big flaw… 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!

Talk with the lawyer 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

While you are waiting for your turn… Be quiet, attentive, and respectful It is not a good idea to 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!

III. ON THE STAND (U.S. Department of Justice, 2015) 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!

U.S. Dept. of Justice, 2015: ** When a witness gives testimony, (s)he is first asked some questions by the attorney who called him/her to the stand.  The questions asked are for the purpose of “direct examination”.  When you are questioned by the opposing attorney, it is called “cross examination”.  This process is sometimes repeated several times in order to clearly address all aspects of the questions and answers.  The basic purpose of direct examination is for you to tell the judge and jury what you know about the case.  The basic purpose of cross examination is to raise doubts about the accuracy of your testimony.  Don’t get mad if you feel you are being doubted during the cross examination.  The defense attorney is just doing their job.

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 “Can you please put that into a simple declarative sentence?”

It is OK to say… “I don’t understand.” “Will you please rephrase that?”

Stick to the facts Do not ever speculate You can say “That is speculative; I don’t know.” Do not show emotion or feeling If you get mad, you lose credibility

If the attorney tries to make you say “yes” or “no” At times… The general rule is… With exceptions…. “Your honor, if I answer yes or no, I’ll be giving misinformation. May I explain?”

You can also say:** 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.

Another way to deal with yes-no: “Under certain conditions….”

It’s OK to say “I don’t remember” or “I don’t know” Be succinct—do not volunteer extra information You can always say “That’s my expert opinion”

“Are you being paid for your testimony “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.” Watch “yes” answers—they try to lead you down the garden path If the attorney interrupts you, say “I’m not finished” and then go on

Also… Do not offer additional information Let the uncomfortable silence just sit there! If asked a compound question, say “Which part of the question would you like me to answer?” (e.g. if they ask “When you tested Jaime, was he attentive and did he seem to comprehend the directions?”)

Call the judge Your Honor or Judge Use “sir” and “ma’am” in your answers Take your time in answering questions—no need to rush Breathe deeply if needed You can also ask the judge for a break

If someone objects Just stop talking “Overruled” means you can answer “Sustained” means you should not answer; wait for the next question

They may try rapid-fire questioning Take your time in answering This helps you, and gives your lawyer time to object

When asked “Is that all?” Say “That is what I can recall at this particular time.” This leaves the door open in case you remember something later.

Watch posture** Be sure to sit and stand tall No slouching Make good eye contact with everyone

When answering questions… 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

III. RELATING TO THE JURY 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

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