Those who are educated and trained in forensic (e.g., legal), neuropsychology are often called upon to provide expert neuropsychological testimony. This frequently occurs in cases of personal injury (e.g., traumatic brain injury) and medical malpractice, and less frequently in cases involving criminal behavior (e.g., attempted murder). Following a comprehensive, forensic-quality neuropsychological evaluation, the neuropsychologist may be requested by either the plaintiff or defense attorney to provide expert testimony either through a formal deposition or live testimony at trial.
Following the swearing-in process, the neuropsychologist will be asked questions regarding their credentials including their formal education, training, research, areas of specialization, and other aspects of professional development. The neuropsychologist’s qualifications may be scrutinized by opposing counsel during cross examination. In any event, this is an important initial part of formal testimony whereby the neuropsychologist has the opportunity to set the stage for being considered an expert and able to render a neuropsychological opinion with a reasonable degree of neuropsychological certainty.
As noted above, formal testimony will begin with direct questioning and examination with regard to the neuropsychological test results, consequences of the case at hand, formulation of clinical opinions, and possible recommendations. It is imperative that one’s testimony makes sense to the jury and thus, formal discussion should be completed, as much as possible, in layman’s terms and refraining from complex and esoteric terminology. Undoubtedly, cross examination will be an attempt to refute one’s opinions, often times asking redundant questions in an attempt to derail the neuropsychologists clinical focus and previously addressed conclusions and opinions. While formal testimony can be an anxiety provoking and daunting task, these concerns can be tempered with excellent preparation including ongoing research and consultation with colleagues. Below are a number of simple strategies that can be utilized during complex neuropsychological testimony:
- Dress appropriately and professionally; appearance is imperative!
- Remain consistent and persistent with your testimony; don’t allow opposing counsel to change your testimony.
- Remain as calm and cool as possible; never appear angry or hostile during even the most upsetting questioning.
- Prior to questioning, spend as much time as needed with the attorney who issued the subpoena to avoid any misinterpretation regarding your clinical understanding of the case, data interpretation, conclusions, and diagnostic opinions.
- Make sure you have obtained, reviewed, and analyzed ALL records pertinent to the case.
- NEVER testify on an issue or render an opinion without having full knowledge of that information and defense against the potential for hostile questioning during cross examination.
- During your testimony, make sure you make eye contact and address the jury, as opposed to the attorney when answering questions.
- Questions should always be answered in a complete, accurate, and truthful manner and without elaboration.
- Be aware and knowledgeable during the differences between legal and neuropsychological concepts.
- During the preparation phase, it is important that you understand the statistical aspects of the tests administered and data obtained including validity, reliability, and standard error of measurement. Your knowledge and understanding will in all likelihood combat any potential embarrassing circumstances.
- Choose your words carefully during testimony and avoid irrelevant or prolonged explanations; an over explanation or elaboration of information often leads to unwarranted questioning by opposing counsel.
- Finally, and most importantly, NEVER deviate from the facts of the case or information that had been previously provided in a formal report.
The implementation of a few of these simple strategies during potentially complex neuropsychological testimony might prove beneficial in alleviating some pre-testimony anxiety, nervousness, or other concerns. While there is no guarantee that the successful implementation of some of these strategies will prevent instances of frustration, they might prove beneficial; time will tell. The more one testifies the more one feels comfortable; however, even the most experienced and seasoned neuropsychologist will and should experience pre-testimony “jitters.”
For additional information or to schedule a consultation, please contact our office at 732-988-3441.
Michael J. Raymond, Ph.D., ABN, FACPN
Board Certified Neuropsychologist #232
Licensed Psychologist #35S100252900