Court Testimony Guidelines and Maxims

The following principles or “maxims” are excerpted from two books by Stanley Brodsky that outlines guidelines for expert witness testimony in court. Maxims 1-61 are excerpted from: Brodsky, Stanley L. Testifying in Court: Guidelines and Maxims for the Expert Witness. American Psychological Association, Washington, DC. 1991; pp. 1-208. Maxims 62-104 are excerpted from: Brodsky, Stanley L. The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. American Psychological Association, Washington, DC. 1999; pp. 1-197.

1. The Admit – Deny: Handle loaded and half-truth questions by first admitting the true part in a dependent clause and then strongly denying the untrue part in an independent clause.

2. Advocacy: The “Bought Expert” Accusation: Respond to implications of being a bought expert by showing awareness of the issue and assertively presenting the foundations of your objectivity.

3. Advocacy: The Pull to Affiliate: Check and recheck that routine pulls toward affiliation are not diminishing the impartiality of the expert role.

4. Becoming Current: Review current literature on the topic about which you will testify.

5. Burden of Proof and Degree of Certainty: Burdens of proof and degrees of defined certainty are legal concepts. Do not accept, define, or incorporate them into clinical, psychological, or scientific testimony (unless you really know what you are doing.)

6. Challenges to Experience: Insufficient Experience: When challenged about insufficient experience, keep track of the true sources of your expertise.

7. Challenges to Experience: Challenges to Experience: Be prepared to present the bases for generalizability of findings and demographic communalities in your testimony.

8. The Case Against Experience: Challenges to professional experience should be met with a knowledge of the literature and affirmations of the worth of your own experience.

9. Changing your Mind: Do not change a professional opinion on the basis of a cross-examination. Your opinions should always arise from your data.

10. Child Sexual Abuse: Lying and Fantasy: Questions about children’s lying and fantasies should be answered with open acknowledgement of their existence and the ways in which the clinical examination rules them out as causes of the allegations of abuse.

11. Child Sexual Abuse: Anatomically detailed dolls: In the controversial area of anatomically detailed dolls in the assessment of child sexual abuse, witnesses should know both the criticisms and supporting data, as well as the requisite professional competencies that accompany their use.

12. Client Dissimulation: Clinic considerations: Challenges about clients faking bad or faking good should be met with affirmative statements of clinical validity, sensitivity, and vigilance for client dissimulation.

13. Client Dissimulation: Research Considerations: Research on client dissimulation should be known and used in clinical work and testimony. Enough of the research findings are equivocal that caution in evaluations and witness statements are always in order.

14. Collaborative Criticism: Criticize your field as requested, but be poised and matter-of-fact and look for opportunities to regain control.

15. Concepts and Definitions: Good definitions are necessary but not sufficient bases for answering fundamental questions. Broader conceptual understanding is needed.

16. Courtroom as Place Identity: Witnesses often feel like aliens in the courtroom: The solution is to be present often and to develop a sense of place identity.

17. Credentialing: Facts: Prepare a list of professionally relevant and complete qualifying questions for the attorney to use in the opening of the direct examination.
  • Education: Where, when, what degrees, specialities, relevant courses, postdegree formal education;
  • Employment: What positions, what level or rank, what responsibilities, when and for how long, current position;
  • Licensure or certifications;
  • Memberships in professional or scientific societies: At what level, for how long, offices held;
  • Honors, awards, and recognitions;
  • Publications and presentations: Articles, chapters, books, talks, editorships;
  • Grants: Subjects of study, source of funding, amount, how long, results;
  • Skills: From workshops, supervision, postdegree training; Consultantships;
  • Speciality knowledge: Of what methods, clientele, topics, how acquired;
  • Experience: What kind, what populations, what role, how relevant to court case.
17. Credentialing: Challenges: Comfortably agree with accurate challenges to your credentials. Offer narrative explanations only when they are nondefensive and unforced.

18. Culturally different clients: Culture does affect the assessment of psychopathology. Witnesses should be culture educated while still clearly identifying and affirming the conventional foundations of their testimony.

19. The direct examination: Meet with the attorney prior to the direct examination and be involved in preparing the questions.

20. Disaster relief: After a disaster during testimony, correct the error as soon as you can. If you cannot, let it go.

21. DSM[1] Cautions: Do not be befuddled if you do not know specific DSM cautions. Do affirm the underlying principles of such cautions in which you believe.

22. Elder abuse and neglect: Testimony about elder abuse calls for a mixture of specific expertise and visible empathy.

23. Employment discrimination: In equal opportunity cases, plaintiff witnesses need to focus on social context and defense witnesses on objective comparisons.

24. Examiner Effects: Cross-examinations about examiner effects call for the witness to explain how training and standardized procedures diminish such effects.

25. Fishing expeditions: When the attorney fishes for ignorance and insecurities, keep your knowledge limits clearly in mind.

26. Fraternisation during the trial: Neither fraternize nor discuss any element of the case with opposing counsel, other witnesses, clients, or jurors.

27. Freud as an expert witness: When testifying about something in which you believe, testify in a manner that shows that you believe in it.

28. The historic hysteric gambit[2]: The historic hysteric gambit is an indication that nothing else has worked for the attorney. Respond with poise, either declining to discuss the historical events or dismissing them as obsolete and not applicable.

29. How you know what you know: From the earliest stage of legal activity, be certain to have mastered the foundations of your knowledge and role.

30. Humor: If you are humorous at all on the witness stand, keep it gentle, good-natured, and infrequent.

31. The idealism hazard: When minimum professional standards are the issue, do not become a visionary advocate of idyllic and rarely attainable services.

32. Intimidation: When attorneys try to intimidate, respond with controlling answers, proper manners, and clinical reflections.

33. Just before the court appearance: Explicitly relax or engage in productive work just before your court appearance.

34. The language of testimony: General principles: Effective language usage comes about when the witness personalizes answers, varies the format, uses narrative well, and produces convincing spoken and transcribed testimony.
  • Personalize your own testimony
  • Be wary of the format of your answers
  • Look for opportunities to give fairly long, narrative answers during cross examinations
  • Use pronouns purposefully
35. The language of testimony: Fluent testimony: Gain control of fluency on the witness stand.
  • Vary the loudness
  • Speak slowly
  • Stress syllables
  • Ease into your breath pattern
36. The learned treatise gambit: Never accept the learned treatise as expertise unless you are master of it.

37. The limits of expertise: Agree to be an expert only when genuine expertise is present.

38. Listening well: Listen with care to the wording of the attorneys’ questions and use this knowledge in the interests of precision and control.

39. Negative Assertions: When the time is right to disagree with cross-examination questions, do so with strength, clarity, and conviction.

40. Orientation to the Courtroom: Effective witnesses are familiar with expected trial procedures, interpersonal transactions, and the dynamics of testifying.

41. Power and Control on the Witness Stand: The Process: Cross-examining attorneys will use substantive and psychological means to gain control over witnesses. Witnesses, in turn, need to be free of such control to perform well and feel good about their testimonies.

42. Power and Control: Time and the Art of Testifying: Take a breath and explicitly think about questions that require thought.

43. Power and Control: Gaze and Eye Contact: Look at the jury during narrative answers and avoid being captured in eye contact by the cross-examining attorney.

44. Power and Control: Personal Space: Make the courtroom environment familiar and create an opportunity for control by sitting tall and owning personal space.

45. The Primary Source Gambit: If you do not know primary sources, worry not. Instead, stay with current knowledge and clinical conclusions.

46. Probes for Guilt and Shame: Cross-examination probes for guilt and shame are effective only if you respond with guilt and shame. Stay on-task and nondefensive.

47. The Professional Witness: Talented professional witnesses can model authoritative expertise for other experts. They are described as:
  • always interesting to watch and hear;
  • able to reconfirm statements of their findings from practical experience;
  • truly abreast of the latest literature;
  • skilled at neutralizing vicious cross-examination attacks,
  • composed and relaxed.
48. Psychotherapists as Expert Witnesses: It is normal for psychotherapists to be reluctant or ambivalent when testifying about their clients. Testimony should include the strengths of the participant-observer role and the extended opportunities to observe their clients.

49. The Push-Pull: When the cross-examination question is true but is asked in a pushy and negative manner, consider agreeing strongly.

50. Quiet Moments on the Stand: Quiet times on the stand can be used to observe carefully, stretch personal limits, and incorporate successes.
  • Anticipate difficult questions
  • Observe with safety: Unchallenged times on the stand give you a chance to look carefully at courtroom dynamics and processes;
  • Experiment;
  • Hold the moment.

51. The Rumpelstiltskin Principle: Know the names and faces of the attorneys, judge, and other participants in the courtroom events.

52. Saying “I don’t know”: When you truly do not know, say so.

53. Scientist Challenges: Both the teeming masses and esteemed scientific standards cross-examinations should be met with a comfortable affirmation of accepted and meaningful standards of practice.

54. The Star Witness Fantasy: A witness’s self-centeredness about the importance of personal testimony can serve as blinders that interfere with clarity, self-assurance, and nondefensiveness.

55. Termination of Parental Rights: The heated emotionality of termination of parental rights hearings calls for exceptionally well-prepared and constructive testimony.

56. Transformative Moments: Key moments can positively and negatively transform the credibility and acceptance of testimony.

57. The Well-Dressed Witness: Dress for court in clothes that are familiar, comfortable, and professional.

58. When it is over: Make the last impression a good one.

59. When your Attorney is Indifferent or Incompetent: With indifferent attorneys, be assertive. With incompetent attorneys, decline the case or educate them.

60. While Lawyers Fuss: When lawyers fuss, stay uninvolved.

61. Ziskin & Faust Are Sitting on the Table: The Ziskin and Faust reviews have an adversarial component and consequently may not meet the respected minority test. Nevertheless, they have made us more accountable and that can be acknowledged constructively.

62. Arbitrary Pigeonholes: Do not allow your reports or testimony to be recast into simple-minded and arbitrary groupings of the attorney’s choice.

63. Asked and Answered: When the court limits what you can explain, neither panic nor become angry or defensive; rather, testify as confidently as you can within those constraints.

64. Back to One: Self-critical judgements and zealous attachments to the results distract from effective testimony. Seek to become authentically yourself as a professional and as a witness.

65. Bulletproofing: The techniques here are not an impenetrable shield for unprepared witnesses. Weaknesses in methodology can and should be exposed by competent probing in the adversarial process.

66. Confabulations: Never make up answers, keep your answers carefully within the context of what you know and remember, and never automatically reply within attorneys’ frames of reference.

67. Context: 1. Choosing a Phrase: Keep the context of your assessments and findings as a foreground issue in expert testimony.

68. Context: 2. Minor Gaps: When minor gaps are questioned, answer matter-of-factly, and in the context of the natures of psychological evaluations and findings of the case.

69. Daubert Hearings: Under Daubert, professional and scientific experts should be prepared with peer-reviewed research to defend the nature of their theories, principles and methodologies.

70. Discovery and Discoveries: Never accept attorney condensation, summary, or conclusions as your only working materials. The expert’s responsibility is to review and assess the case personally and professionally.

71. Ethics in Expert Witness Testimony: Keep your ethical priorities in order. Attending to scientific and professional truths always comes before responsibility to the court, and these court obligations always precede responsibilities to retaining counsel and to protecting one’s self-esteem.
  • Assume a special responsibility to be fair and accurate;
  • Avoid partisan distortion or misrepresentation;
  • Actively disclose all sources of information;
  • Be prepared to distinguish between one’s own expert testimony and legal issues and facts.
72. Evasive Responses: Hopeless but Not Serious: In the normal and inevitable moments of feeling pulled toward evasiveness, concentrate carefully, and answer the difficult question.

73. Experience Does Not Count: Do not defend experience itself as proof of being accurate in forensic conclusions. Instead, report your career experience if asked and address the specific skills and means of reaching your conclusion.

74. Expert Witness as Master Teacher: Part of being a great witness is to be a great teacher on the witness stand, and being a great teacher is the result of concerted effort.
  • Dynamic communication. Static presentation of findings leave to the jury and occasionally the judge the burden of making the content meaningful.
  •  Styles of relating on the stand that involve the audience. Some witnesses have the impact of a bag of concrete mix. They need other ingredients to be useful. Ineffective witness-teachers are so wrapped up in themselves and their results that they do not connect with the courtroom audience. Unwrapping one’s knowledge with the pleasure and adventure of unwrapping holiday gifts permits the jury to feel they are part of what is happening.
  • Clear Communication. It is not necessary to employ the academic tool of using eight elegant words when one clear, simple word will do. If it is not understood, most of the time it will not be accepted. I say ‘most of the time’ because sometimes cases come up in which no juror can truly understand the complexity of the issues.
  • Authenticity about who you are as a scientist or professional. Witnesses who are bad teachers strain to be something they are not, and find that courtroom pressures misshape them. For all of the above advice about what to do, the overriding rule is to seek ways to be on the witness stand that present you at your natural best.
75. Floccinaucinihilipilification: Anticipate cross-examination efforts to portray essential elements of your testimony as worthless.

76. For Better and Worse: Overprepare: As in marriage, personal complacency can keep you from coping effectively with courtroom strife.

77. Gender Labels: In the difficult moments in which women are patronized on the witness stand, they may gain control by restating their status as doctors without being strident and within the context of the questioning.

78. Illusory Documentation: Do not construct illusory support for opinions or methods and do not be intimidated by such illusory constructions by attorneys.

79. Inflammatory Questions: Inflammatory questions are best answered with calm explanations that demonstrate a confident sense of professional competence. Do not heat up on the stand.

80. Integrity Checks: Challenges to one’s impartiality may be addressed by having calculated (for intrinsic reasons) the percentage of times one’s expert opinions are contrary to those of retaining attorneys.

81. Internet Vulnerabilities: When confronted with your own fanciful and playful remarks, place them in context as fanciful and playful.

82. It Would Be So Nice If You Weren’t Here: Whether it indeed would be nicer if one were not on the stand comes powerfully from the sense of shunning imposed by the attorneys and the witness’s own internal self-assessments. Our transient self-judgments in response can be shaped and aided by experience and successes.

83. Language: It’s a Virus: Listen well: To ward off language viruses, you need to be ‘much, much better’ at discerning meaning of words and phrases.

84. The Last Word: When the attorney comments on one’s testimony, having the ‘last word’ can empower the witness and reduce a sense of helplessness.

85. Lawyer Bashing: Avoid anti-lawyer jokes and quips on the witness stand. They are high-risk comments, to be reserved for rare and exactly fitting moments.

86. Lay Witnesses: Hostile attacks on one’s character are best met with clear affirmations of worth and restatements of the essential issues.

87. Offensive Language: Flagrantly offensive language never has to be met passively. Options include going to the judge, recording statement, confronting the speaker, consulting with colleagues, withdrawing from the case, or using the information as part of one’s testimony.

88. Personal Attacks: Scholarly preparation, composure, and negative assertions are preferred responses to personal attacks.

89. Practice Answers: Maintaining integrity on the stand calls for careful listening, avoidance of anticipatory answers, and staying faithful to your findings and knowledge.

90. Pulling and the Push-Pull: Pulling in a push-pull exchange is an art that requires non-defensive responding and meaningful practice.

91. Real and Apparent Ambiguities: Real ambiguities exist in understanding and interpreting behaviours of defendants and litigants. Opposing experts who disagree with you are not necessarily corrupt, dim or myopic.

92. Reconstructing Your Testimony: Assumptions about what and how you are communicating on the stand need to be checked and rechecked.

93. Shifts in Testifying and Consulting Expertise: Evaluating experts can legitimately give up their roles as expert witnesses to become jury or trial consultants, but should never assume both roles, or shift from jury or trial consultants to becoming testifying experts.

94. Silent Treatments: Silence becomes us when we are not intimidated by it in cross-examination and can use it comfortably toward our own effective testimony.
  • Silences are not the opposite of speech, but rather the environment surrounding spoken language.
  • Silences serve the function of contrast or emphasis of spoken language.
  • Lengthy silences can be attention grabbing.
  • Silence helps you put thoughts into words and to experience a greater awareness of yourself and the courtroom.
  • Silence is a central part of turn-yielding behaviors and is part of turn-requesting in conversations as well.
95. Sleight of Hand: Witnesses are not obliged to answer all questions that appear to be related to their fields. Instead, witnesses need to attend to the direct applicability of the question and the extent to which the substance truly falls within their expertise.

96. Social Construction of Illnesses and Disorders: Psychological disorders and labels are socially constructed, and the prepared expert knows the nature and limits of the constructs.

97. Taints: Questions about allegations of misconduct should be met forthrightly, indignantly and openly.

98. Tape Recording of Evaluations: Evaluations that are tape-recorded may be useful for maintaining an accurate and accountable record of questions and statements of both examiners and subjects.

99. Telephone and Videotape Testimony: Rather than feeling dis-empowered by the absence of visual cues in telephone and videotape testimony, seek by practice and training to master your performance in the medium.

100. To Cry, to Faint: Address fears of crying and fainting on the stand by habituating to the courtroom, by drawing on an ally, by gaining perspective, and by calling for a break in your testimony, if necessary.

101. Traps of Common Sense: Do not be immediately agreeable to affirmation of common sense until you have thought through the specific meanings of the questions for your data, conclusions, and opinions.

102. Trivial Pursuits: Attorneys’ pursuit of trivial topics during depositions is neither a cause for catastrophizing nor concern. Answer without suspiciousness as much as you can without jeopardizing the limits of your expertise.

103. Ultimate Opinion Testimony: Ultimate issue testimony should be approached with caution and considered a rare event that is dependent on the situation.

104. What I Don’t and Do Like to See in an Expert Witness: Decide for yourself what it is you dislike in yourself as an expert and what you like. Then, take active steps to diminish the aspects that do not work and enhance the ones that do.

[1] DMS: Diagnostic and Statistical Manual of Mental Disorders.
[2] Meaning, he attorney resorts to attacking the whole discipline or profession of the witness.