Reducing the anxiety of experts called to testify
With fewer personal injury cases going to trial, experts who may be called to testify are more likely to feel anxious or unprepared to take the stand, says Toronto critical injury lawyer Dale Orlando.
“Even a very self-assured person who is confident in the opinions that they’ve rendered in the case can become very skittish because they just don’t have that experience in the courtroom,” says Orlando, partner with McLeish Orlando LLP. “It’s like a fish out of water experience for them.”
Testifying Without Fear, a recent conference hosted by PIA Law and co-chaired by Orlando, tackled those issues, attempting to make rehabilitation experts feel more prepared and less anxious about testifying in court.
Along with a presentation on the “Do’s and Don’ts” of expert evidence from Justice Mary Anne Sanderson, the conference also included an interactive trial cross-examination of a witness by Patrick Brown, partner with McLeish Orlando.
“It was very helpful for the audience to see what it actually looks like to be cross-examined at trial,” Orlando tells AdvocateDaily.com.
“The problem is we now have very few cases that actually go to trial, so it’s not unusual to have an expert called who has never testified before.”
Years ago, lawyers and experts were constantly attending trials and that experience helped to alleviate the anxiety, he says.
“People are anxious about testifying and because they haven’t done it or have done it very little, so they are not particularly good at it,” Orlando says. “It’s a foreign environment for them — you can imagine. You get marched into a courtroom, you are sworn in, you are standing beside a judge, you’ve got the jury and a whole bunch of lawyers looking at you.”
On top of the common fear of public speaking, experts must be prepared to defend their evidence in cross-examination, which can be intimidating, he adds.
The conference — attended by occupational therapists, physiotherapists, life care planners, physicians, engineers and accountants — offered tips to reduce anxiety and strategies or models to make evidence more persuasive and easier to understand.
It also touched on the evolving nature of expert evidence, Orlando says.
“Over the last several years, judges in particular have really started to enforce rules that state experts should educate the court about things that are beyond the experience of the normal individual,” he says. “The role of an expert is to assist the court in understanding complex information in an impartial way.”
Experts should not advocate for the side that hired them, Orlando says. In fact, they signed a Form 53, which indicates they agree to be impartial.
“More and more judges are enforcing that rule and have come down on experts who may be perceived as advocates,” he says.