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At some point in your nursing career you may be asked to act as an expert witness in a legal proceeding. In this issue of infoLAW, common queries about being an expert witness and suggestions about how to prepare for this role are reviewed.
What is an expert witness?
An expert witness is someone who, because of their education, experience or a combination of both, has knowledge that can inform decision makers about nursing practice standards. Expert witnesses may be retained to give evidence at inquests, hearings and trials.1 The most common use of expert testimony, in a nursing or medical negligence case, is to establish what the reasonable standards are in the circumstances and whether the nursing care provided met those standards. An expert witness may be asked to give opinions based on hypothetical questions, a subject area and whether certain conduct is appropriate or reasonable in the circumstances.
How are experts compensated?
As an expert, you are entitled to reasonable compensation for your services. Before agreeing to take on this role, you should request a written contract from the lawyer retaining you which outlines her expectations, explicitly states your fees and what they cover, and reimbursement for expenses. Your hours billed should include the time spent in telephone or in-person consultations with the lawyer,
reviewing documents and preparing reports, travelling (plus expenses) and appearing in court. You should also include a term in the contract that requires payment of your account upon invoicing.
As an expert witness what can you expect?
When called to testify, you will be sworn in and asked to tell the whole truth by swearing on a bible or affirming. As a preliminary matter, before you are allowed to give opinion evidence, your qualifications as an expert must be accepted by the court. To accomplish this, the lawyer who retained your services must present your education, training, experience and professional credentials to the court.2 After the judge has qualified you as an expert, you will be questioned first by the lawyer who has retained your services (Examination-in-Chief ) and then cross-examined by opposing counsel. Following the cross-examination, the lawyer who retained you may ask you further questions on re-direct examination.
- Dress professionally.
- When you are asked to take the stand, remain standing until you are sworn in and are directed to be seated.
- Be prepared to state your full name for the court record.
- Listen carefully and ensure that you understand the question before you answer. If the question is unclear, ask for clarification or rephrasing.
- Take your time answering questions and, if you need to look at a document in order to respond, ask to see the document.
- Be prepared to offer opinions about whether a particular type of conduct or treatment was appropriate (given the circumstances as you interpret them) and in accordance with evidence-based practice.
- If you are asked questions about matters outside the scope of nursing, inform the court that this is outside your field of expertise.
- Answer questions clearly, confidently and courteously; direct your responses to the jury, or to the judge if there is no jury.
- Answer only the specific question asked of you.
- Use everyday language to answer questions and avoid medical jargon. If technical language must be used, provide an explanation to ensure that your answers are understood.
- Answer the questions to the best of your ability. When you do not know the answer to a question do not be afraid to answer “I do not know.” Do not guess.
- You must answer the questions. The lawyer who retained you will object to questions that are improper or irrelevant.
- Do not contradict yourself either within testimony or with anything that you have written or said beforehand unless you are able to explain why you are now giving a different opinion.
- Do not promote the position of the party for whom you are testifying, because this will reduce your credibility as an independent professional.
- When you are asked to respond to a question with a “yes” or “no” response and it is not appropriate, tell the lawyer that you cannot answer the question in that manner and an explanation is required. The judge will usually allow you an opportunity to explain.
- Outside the courtroom, avoid discussions with other witnesses and politely refrain from giving statements to the press. If a recess or break is called during cross-examination, the judge will direct you not to discuss your testimony with anyone else. ?
There is no obligation for you to act as an expert witness in any legal proceeding. If you do agree to act as an expert witness, however, proper preparation will help you be an effective witness.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.
- Pat Campbell, “Nurse in the Witness Box,” RNAO News (October 1986), p. 10.
- Elaine Borg, “The Nurse as an Expert Witness,” Canadian Nurse 100, 6 (June 2004): 38-39.
- Registered Nurses Association of British Columbia, Being an Expert Witness in a Law Suit (Vancouver: Author, 2002), p. 11.
- L.E. & F.A. Rozovsky, “How to be an Expert Witness,” Canadian Operating Room Nursing Journal 9, 2 (May/June 1991): 21.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.