By Dr. Ken Broda Bahm:
A few days ago, after the National Rifle Association got wind of a new issue of Annals of Internal Medicine which included several articles on gun control, the organization tweeted back at the doctors: “Someone should tell self-important anti-gun doctors to stay in their lane.” Once various other conservative commentators jumped aboard, the NRA’s lane-based criticism produced a storm of furious responses from ER doctors and others who work with gunshot victims across the United States. Dr. Judy Melenik, for example, tweeted back, “Do you have any idea how many bullets I pull out of corpses weekly? This isn’t just my lane. It’s my f***ing highway.”
This back-and-forth caught my attention, not just as an observer of the country’s current culture wars, but also because that advice — “stay in your lane” — exactly mirrors the advice that is given to witnesses before their testimony. I have never really liked that language. It sounds, as the NRA intended, as a kind of put-down in emphasizing the limits of one’s relevance. At the same time, the heart of the advice is critical. If and when doctors, for example, are called to testify, they need to limit their testimony to their own area of specialization as well as to the facts as they, personally, experienced them. But the advice need not be seen as a limit or a put-down. If witnesses can, like Dr. Melenik, be very clear about what is in their lane of experience, that lane can be a strength, not a weakness. So witnesses definitely should stick to their role and to what they personally know, but they can also own that focus by being very clear about what they know, and how they know it. In this post, I’ll share some thoughts on the ways that witnesses can sometimes be tempted to stray outside of their lane, and some ways they can stick with their lane and thrive in the process.
You Might Stray Outside Your Specialty
“Doctor, do you believe that the nurses in this case met the standard of care?”
It is only human to have an opinion. But this witness is a doctor, not a nurse. Frequently working with nurses, and even overseeing nurses, does not necessarily give the doctor a detailed understanding of the professional expectations that apply to a nurse. In the same way, working with other specialists does not give that doctor an understanding of the standard of care that applies to other physician specialists. That same need to avoid testifying outside the lines of one’s specialty also applies to other professionals — engineers, attorneys, accountants — as well as to all expert witnesses.
Instead, Own Your Specialty
When jurors look to the witness stand, they’re looking for people who can help them understand something they wouldn’t otherwise understand. Your expertise is useful. Even as a fact witness, they want to understand how you see the facts from the perspective of your own training and experience. So take the opportunity to embrace your knowledge and to teach. Even when you need to stay in your lane by avoiding someone else’s specialization, emphasize what is your specialization before you emphasize what isn’t. So the answer to the earlier question might be something like this:
I’m sorry, I am an emergency room doctor and that is the area of expertise I can speak to in detail. I am not familiar with the specific standards of care which apply to nurses.
You Might Stray Outside Your Knowledge
Doctor, why did your colleague not administer the drug immediately?
Expertise creates one lane for you as a witness, and personal awareness of the facts creates another. To have a foundation, your testimony needs to be limited to what you observed, heard, learned, and did. Even experts will want to limit their testimony and base their opinions on what they actually know. Witnesses get into trouble when they venture beyond the boundaries of what they know. The examining attorney will instruct you not to speculate, and your own attorney will also intervene. But there can be gray areas and, ultimately, you as the witness are the only one able to reliably limit your testimony to just what you know.
Instead, Own Your Observations
Be clear about what you do and don’t know. And those three magic words, “I don’t know,” when that’s the true response, ought to be delivered without apology or any sense of concession. Still, the emphasis should be on what you do know rather than what you don’t. The answer to the question above about another person’s decisions may be something like this:
I can certainly speak to what I did and why, but I cannot speculate about the reasons that others had for what they did or did not do.
You Might Stray Outside Your Role
Doctor, do you have any criticisms of your patient, Ms. Smith, for not following your advice?
Beyond your knowledge and your expertise, there is one final lane that the witness needs to be aware of and stay within, and that is the more general notion of their role. And by “role,” I don’t just mean the formal job title but also the broader expectations that are created by fact-finders. For example, a doctor is expected to be a caregiver. They’re expected to help and support a patient. That is why jurors will often see it as role-inconsistent when a doctor or someone else in that caretaker role is seen as blaming or criticizing a patient. Even as jurors will be comfortable applying their own evaluation to that patient (something that is easy for them to do based on their own experience as patients — e.g., I would have followed the doctor’s advice), and they will because their role is closer, they don’t want to see the doctor do that.
Instead, Own Your Role
If doctors are going to be constrained to be in their roles as caregivers, that is a good lane to be in. Jurors generally want to support doctors because they want to believe that the person responsible for their own care and the care of their loved ones is capable, careful, and caring. And this perception is not just limited to doctors. Other witnesses should also think about the social value in their role as that is likely to be perceived by jurors. Embracing the positives in your perceived role is a way of emphasizing your credibility. In response to the question above, the doctor might respond in this way:
As a doctor, I am certainly going to make recommendations to patients – that is part of my job. But it really isn’t my place to be critical of them based on whether they follow that advice or not. My role is to treat them to the best of my abilities, whatever choices they should make.
Other Posts on Witness Testimony:
- Witness Preparation: Teach the Second Level of Response
- Be the Director of Your Witness’s Direct Examination
- Witnesses: Fight on the Bottom Rungs
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