Few professionals enter the field of nonprofit counseling with the desire to become an expert witness, although many of us find ourselves on the stand at least periodically. There are ways to get out of testifying, but it is typically in the interest of justice that we provide our expert testimony. I’m not a lawyer and have no desire to ever be one, but this month I’d like to offer some thoughts that I have collected on this matter since first providing expert testimony in the 1990s.
You have no side: As an expert witness, you should not have a side. The person who is paying for your time should never influence your testimony. The outcome of the case is not your concern; providing an impartial opinion is. This is especially important to remember when you have a lawyer (or several) who gets nasty with you during your testimony. Keep your focus on the facts and remember that to some extent, the process can be a game to the attorney, especially if one side is pro se (representing on one’s own behalf). Lawyers will at times get personal or outright mean, but don’t let them rattle you. You have no friends in the courtroom to be sure, but neither do you have any personal enemies. Just do your job and leave.
You do not have a win-loss record: As an expert witness, you are not concerned with the ultimate outcome of the case. Instead, your concern is answering all questions truthfully and to the best of your ability regardless of the case’s potential outcome. We do not win or lose; we simply do our jobs and leave.
I have testified in many cases over the years, but I pride myself on knowing the outcomes of only a few of those cases — and that is typically because someone in the system decided to send me a message, even though I request that they refrain from doing so. Not knowing the outcomes of cases has helped me many times when an attorney has tried to accuse me of wanting to win a case for my client. I suggest keeping court-related work limited to a small overall percentage of your practice so you will not become dependent on it (unless your program is built around such work). I cap my work as an expert witness at no more than 10 percent of my practice. When an attorney in court insinuates that I might be concerned about the outcome of a case because of the revenue I stand to make as an expert witness, it has been comforting to answer that only a small fraction of my work is related to court and that I prefer to work directly with clients. The courtroom is their world, while mine is the clinical space.
When questioned along these lines by a lawyer, I’ve been known to say, “The outcome of this case is your concern. Mine is simply to do my job as an expert witness and then return to my real work, which is to help make real and lasting change.”
Your testimony is never for sale: A common refrain from the side that did not pay for your time in court is that your testimony is being bought by the other side. The implication is clear: You sell your opinion to the highest bidder and, as such, your testimony cannot be trusted. I handle this insinuation the same way every time — with a thorough and calm answer. “My testimony is not for sale. It is mine and mine alone and is independent of any case or side. As an expert witness, my time is valuable and, yes, it is paid for, but no one but me has any influence on my opinion or testimony. It is mine and mine alone, regardless of its potential impact on the outcome.”
Speaking of payment, you deserve to be paid and paid well for your services. As an expert, you will be grilled and treated unfairly at times, and you have no friends in the courtroom. The folks paying you to be there will turn on you if they feel the need. As such, this is not the time to worry about keeping costs low as you normally would at the nonprofit. Charge a fair and reasonable price, and make sure this is extended to any person from your agency if you are sending an employee. Give that person a bonus or some other kind of a bump for putting himself or herself on the firing line that is the witness stand.
I’m known for providing free or reduced care for those in need, and in the early days of my career, I would also go to court on a pro bono basis. But as I had more and more time in that war zone, I grew tired of entering it, much less entering it for free. Today, I will enter the world of court, but I will be paid very well for it. I feel that I earn every penny that I am paid there because I remain open, honest, professional, assertive and on top of my game. I analyze every question with the potential motive in mind and try to answer questions fully.
If you are good at what you do, you may find yourself getting referrals from attorneys who have cross-examined you in the past. This has actually happened to me many times. When they see that you are fair and honest, they are likely to want to use you, even if your testimony hurt their prospects in a previous case.
We do not “advise”: Sometimes when clients’ bad decisions and actions have put them on the wrong side of the law, they look for a scapegoat. At times, attorneys may try to put some of the blame on the laps of anyone who treated their client. In fact, it is not uncommon for attorneys to ask clinical professionals if they “advised” a client to do something. This is often a trap. When faced with such a question, the answer is always “no.”
If asked for clarification, it is best to reply that no clinician ever advises a client. Instead, we simply help clients explore all the options for handling a situation so they can make their own decisions based on all the available data. This may aggravate the attorney. I personally have responded to an attorney who continued to use the word “advise” in a question this way: “I am doing my utmost to answer all your questions to the best of my ability, but the question you posed suggests that I ‘advised’ my client to do anything, which is simply false.”
Get your timing right: Famous last words from attorneys: “I only need you for an hour or so.” Never buy in to this logic. Do yourself and your clients a favor and cancel all sessions for the day when you are scheduled to serve as an expert witness unless they ask you to come to court in the afternoon. In that case, keeping your morning clients may be possible provided that you allow sufficient time for travel, parking, etc. This is also why you bill by the day for court and not by the hour. My record on the stand as of this writing is five hours (including the recesses taken during testimony). Imagine if I had planned on seeing clients in the afternoon!
Finally, please be sure to have your court-related policies clearly stated in your consent to treatment forms and also on your website should you have one.
Testifying in court can be a lucrative part of your nonprofit should you desire, but it also can be a colossal pain. Be prepared, be clear and be professional. Being well paid is not so bad either. I’m rooting for you.
Opinions expressed and statements made in articles appearing on CT Online should not be assumed to represent the opinions of the editors or policies of the American Counseling Association.
“Doc Warren” Corson III is a counselor, educator, writer and the founder, developer, and clinical and executive director of Community Counseling Centers of Central CT Inc. (www.docwarren.org) and Pillwillop Therapeutic Farm (www.pillwillop.org). Contact him at firstname.lastname@example.org.