On being an expert witness: it's not about you.

Expert testimony, for many mental health professionals, is fraught with anxiety. In this article, the authors attempt to alleviate this anxiety with a simple recipe for professional, ethical, and economic success as an expert witness. Because experts are essentially getting paid for their credibility, this is one area of practice where the most ethical behavior can also be viewed as the most likely to lead to economic success. First, a review of relevant U.S. case law and rules governing the legal admissibility of expert testimony is provided. Next, issues that should be considered prior to taking the stand are discussed, including the value of seeking consultation and how to decide when to accept a referral. Finally, prudent and empirically supported strategies to manage direct testimony and cross-examination are suggested, including how to approach the "ultimate issue" issue, and how to be persuasive without abandoning our duty to tell the "whole" truth, especially including the parts we may not find convenient.

Key words: admissibility; Daubert; evidence; expert testimony; expert witness; Federal Rules of Evidence; testimony.

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Psychologists and psychiatrists are often asked to provide testimony in courts of law. For some, this is a harrowing and anxiety-laden experience, whereas others seem comfortable, even eager, to testify. For those with significant anxiety, it is often centered around the embarrassment that comes with faring poorly on cross-examination. Mental health professionals loathe and fear the prospect of being embarrassed, being (hopefully unfairly) accused of unethical or immoral conduct, or being harshly criticized by attorneys whose zealous advocacy is untempered by any duty to be fair or objective in dealing with opposing experts. (Note that this is not intended as a negative criticism of attorneys, whose duty is to advocate for their client, in contrast to expert witnesses, whose duty is to provide accurate and objective information to triers of fact.)

When mental health professionals go to court, they are working in a system that uses very different language, whose rules of engagement are unique to courts of law, and over which they have very little control. In this article we argue that expert testimony, at its best, is a simple process. By simply answering questions honestly, telling the court what we know, how we know it, and what we do not know, we will not only abide by our legal oath to be truthful, but also will maintain the credibility that is ultimately the only asset for which we get paid.

It is our position that the most egregious errors by expert witnesses are almost always attributable to narcissistic needs, including the need to be praised, to make money, to be right, and to win. There is a seduction to being the apparent star witness of a trial, and it feels good to have so many people care what one thinks and says about the case. But yielding to these needs is a dangerous and slippery slope. Experts who need to win will be tempted to embellish the evidence on which their opinion is based. Experts who need to be admired will be tempted to enhance their credentials, including education, training, experience, and standing in the professional community. Experts who are too oriented toward money will be tempted to tell prospective clients what they want to hear, thus landing in positions that do not fit the evidence.

In our view, it is far better for experts to take a more humble stance, and think of themselves simply as evidence. It is the lawyer's job to win a case; it is the expert's job to answer questions as truthfully as possible.