Reports

Many neuropsychologists, attorneys, and judges see report writing as an important foundation for productive expert testimony. This chapter addresses ways in which our reports affect our testimony, and conversely, how experience testifying transforms the way we write our reports. As emphasized throughout this book, we can create access to our expert knowledge by using clear, vivid, jargon-free language on the witness stand when we communicate with attorneys from the first contacts in the case. This chapter extends that recommendation to our reports as well. Using clear, accessible language can make a difference in the impact of our reports in forensic settings.

Specific Testifying Situations

This chapter offers advice and strategies from seasoned forensic psychologists, neuropsychologists, attorneys, and judges regarding specific testifying situations, including testifying in front of a judge rather than a jury, testifying about a record reviews (when you haven’t met the plaintiff), testifying as a fact witness, and testifying in capital cases.

Depositions

What are the differences between testifying in court and testifying in the context of a deposition? Attorneys, judges, and seasoned forensic psychologists and neuropsychologists share their perspectives in this chapter about all phases of deposition testimony. Topics include setting the boundaries of the deposition, goals of deposition testimony, typical differences in tone by cross-examining attorneys during depositions as opposed to court testimony, videotaped depositions versus videotaped testimony, and strategies for experts to maintain their credibility and clarity through the deposition process.

Relationship with Other Experts

It is the nature of our adversarial court system that two experts will testify that they have come to different conclusions about the same person. How that fundamental disagreement is handled by the expert determines whether jurors must witness a “pissing contest” or are thoughtfully educated about the nature of the disagreement. Depending on the litigation strategy, one or both attorneys may want to incite such a contest. This chapter provides rationale and strategies from seasoned forensic psychologists and neuropsychologists as well as attorneys and judges for avoiding unproductive conflicts while accurately and productively explaining differences in opinions. Experts, attorneys, and judges all agreed that tearing down another expert’s credibility damages your own on the stand.

Cognitive Development, Premorbid Function, and Intellectual Function

Pediatric trauma, medical malpractice, teen criminal cases and capital cases often require explanations of normal and abnormal cognitive development; and almost any case we see as forensic neuropsychologists requires some level of communication about how we assess “premorbid” intellectual or cognitive function. This chapter shares clear, vivid strategies to explain concepts of cognitive development, premorbid intellectual function, and current intellectual abilities. Topics covered include the developing brain, problems that might emerge later in a child’s development, prenatal injuries, and intellectual disability. Because in many forensic contexts, a defendant/plaintiff’s IQ number can have very profound consequences, experts should be prepared when IQ is discussed in court.

Visuals

The goal of direct testimony is to present the narrative of our opinions in an engaging, accessible, and vivid manner. Visual aids are one of our most powerful tools to do this. Pictures, charts, graphs, videos, and other visual media invite our listeners to actively engage with the material we are sharing. Creating the visuals also forces us to summarize our findings. Neuropsychologists and psychologists often like to “hang out in the trees”; we are detail-oriented in our work and often in our testimony. Visual aids help describe the forest; they force us to synthesize and describe the big picture. This chapter is about the use of visuals in testimony and discusses strategies for using visuals in specific testifying circumstances as well as offering some cautionary tales.

Social Pragmatics of Testifying

Social pragmatics is the language behind the words we speak. This language is visual and auditory. It involves how we dress, our posture, hand gestures, and facial expressions; the pitch, rate, and volume of our voice; our vocal patterns; and how we move when we approach the witness box. Even seasoned clinicians often appear stiff and rigid when they testify. Being awkward in a courtroom can be a barrier to building credibility and connecting with jurors. This chapter challenges expert witnesses to identify the social pragmatics they are using to communicate the message behind their words. Are we using social pragmatics that reflect who we are, or are we unwittingly sending a message we don’t want to send? The purpose of looking closely at the language behind our words is not to create a false or misleading persona for a jury but to identify and eliminate nonverbal barriers that are distracting from our message and distancing us from our true selves and from others.

Creating Access to Assessment Methods and Results

Jurors may have no idea how our assessment tools and procedures work. Professionals are so used to speaking and thinking with the basic assumptions of our professions that those assumptions become invisible to us. Standardized testing and normative interpretation are a great example of this concept. After years of graduate school and clinical practice, when a neuropsychologist uses the word testing we have a very precise image in our thought bubbles of a battery of valid and reliably constructed instruments, normed on appropriate populations, administered in a standardized fashion, and interpreted in the context of the larger assessment. But very few jurors will have been exposed to the concept of normative interpretation. To ensure that jurors and triers of fact have access to our broader message regarding assessment results, we need to begin our testimony with a clear, accessible, and engaging description of our assessment tools and process. This chapter addresses strategies for explaining psychological and neuropsychological assessment procedures, as well as specific tests like the MMPI, in a clear, accessible manner.

Relationship with the Attorney

This chapter is about establishing a clear, productive attorney–expert relationship that sets the stage for good testimony. As clinicians and scientists, we are accustomed to being in control of how we share information. In our classrooms and consultation rooms, we orchestrate “what” and “how” information is shared. As expert witnesses in the courtroom, however, others are in control of the process. The idea of walking into a courtroom without first establishing a clear, precise plan with the attorney who is orchestrating the information exchange should be a very unsettling proposition. The chapter also frames the benefits of establishing a good working relationship with attorneys as a “two-way street.” Ideally, attorneys educate neuropsychologists and psychologists about the legal issues at hand, specific questions the expert will be asked to address, and the rules of testimony in the jurisdiction where the case is being heard. At the same time, neuropsychologists and psychologists educate attorneys about how we can contribute to understanding complex psychological and neuropsychological issues in cases. Together, a complex game plan for exchanging information during a trial is orchestrated.

Explaining Statistics

This chapter is a compilation of clear, succinct strategies for explaining difficult-to-understand concepts for jurors when statistical issues are raised in the courtroom. Think of this as a “back pocket” chapter: strategies to have if you need to use them, but not typically anything you would bring up on your own. Many experts starting out in the forensic arena assume that they will be asked to demonstrate their command of statistical minutiae every time they are cross-examined. Statistics, however, are not often brought up because most attorneys do not have the depth of knowledge required to ask the appropriate follow-up questions. They will also avoid an area that they consider to be boring to jurors.