Easing the expert witness path
My favorite movies are well-worn comedies like “It Happened One Night”—classics
with plots a bit off center and romantic protagonists a bit at odds.
And I am always engaged by stories about ordinary people whose instincts
latch them stubbornly to the straight and narrow, keeping them honest
and letting them win in the end.
So as I thought about this month’s column, I kept coming back to ”My Cousin Vinny,“ and thinking that if a pathologist called upon to act as expert witness needed a role model, he or she could do a lot worse than Marisa Tomei.
I realize that calls for explanation.
I wanted to write about our new expert witness guidelines, but I knew that
CAP TODAY would be publishing a news story this month (Related
article: Expert witness guidelines: Pathologists
given new order in the courtroom)
that would cover their development and content. I also knew that the guidelines
would speak for themselves—they’re elegantly austere, a veritable haiku
to propriety in the courtroom.
What I wanted to talk about was the personal side, the critical choices made by individual pathologists who take responsibility for what amounts to defining the standard of care for the purposes of a legal proceeding. That’s where the movie came to mind.
Joe Pesci isn’t Clark Gable and Tomei is no Claudette Colbert, but I liked ”My Cousin Vinny“ (excepting the profanity, ubiquitous these days). Tomei deserved the Oscar she won for her performance as the long-suffering fiancé with an encyclopedic knowledge of automobile mechanics. Called as a reluctant witness, Tomei is clearly not invested in the success of Pesci’s defense, but she is incapable of compromise on the facts. She cannot withhold what she knows because she respects her science, and the truth, too much. You know that if she didn’t know she would say so. And the jury knows that Tomei’s knowledge is empirical; she comes by it honestly, as we used to say.
The expert witness for the prosecution is equally instructive. His credentials are impressive (”FBI“); he is objective and professional, though incomplete. Still, we don’t know that and neither does the jury. His testimony would have put the wrong men in jail if Pesci hadn’t done his homework. But he did do his homework, and Tomei had the expertise to discern what the evidence meant. It’s a satisfying story.
We lived in Missouri for a time when I was growing up, and I guess you could say that I’m from Missouri on this expert witness business. If the function of a legal or administrative proceeding is to get to the truth, then I want to hear the facts. I want the experts to show me they have done their homework, that it is their science that matters most to them, and that they are working for me, not for the prosecution or the defense. I want to hear them say, ”I don’t know,“ if they don’t know. I want to know that they won’t accept a case outside their skill set. I want to know they have considered every clinicopathological correlation. I want to know their testimony reflects relevant evidence-based research, peer-reviewed literature, and authoritative texts. I want to hear about what was known, medically, at the time and place in question. The expert who follows the CAP guidelines will tell me those things.
The pathologist expert witness serves more than the cause of justice, though that’s the primary task. He or she represents our specialty in the greater community. Those who encounter their work product, whether as administrative staff, employees of the legal system, members of a jury, or parties to a proceeding, will come away with an appreciation for the science of pathology and the complexities of modern medicine.
I would not encourage someone who is uncomfortable with confrontation to pursue opportunities to act as an expert witness. Our system of justice is adversarial; the attorney works for the best interests of the client while the expert witness acts in the best interest of the court. It can be awkward when an examination of the evidence fails to satisfy the goals of the attorney who is paying your fee, but that’s the job. That’s why your notes are discoverable by both sides. That’s why the opposing attorney may attempt to call your credentials into question. That’s why you decline cases that are not well within your area of current medical expertise. And that’s why the guidelines call upon witnesses to make their depositions and testimony available for peer review.
In drafting these guidelines, we acknowledge the structural tensions of our adversarial system and recognize that every conscientious participant plays a part in making it better. Qualified experts serve the community and the public good. The guidelines give the inexperienced medical expert a framework to rely on. They should be helpful to officers in proceedings who seek to ensure that experts called to testify have sufficient, pertinent, and current qualifications.
Much like ”It Happened One Night“ and ”My Cousin Vinny,“ the CAP guidelines for expert witnesses are about the journey. Serving the public as an expert witness is a part of our calling, and the College has provided these guidelines to smooth that path.
Dr. Sodeman welcomes communication from CAP members. Write to him at email@example.com.