Forensic Speech-Language Pathology
A practical guide for the expert witness
By Paul T. Fogle, PhD
Forensic speech-language pathology is an unattractive potential involvement for speech-language pathologists in most any setting. As I emphasize to graduate students at the University of the Pacific, in Stockton, CA, anything you write about a patient or client of any age is a potential legal document.
Not only are our reports subject to being subpoenaed in court cases, but our daily notes and documentation may need to be submitted as well. In addition to our paperwork being subpoenaed, we ourselves may be called upon to report or testify at a hearing in front of a judge or in a court case before a judge and jury as an expert witness.
Having been involved as an expert witness on a variety of cases over the past 15 years, I have had one- to two-hour depositions in the offices of attorneys with a court reporter present, taking down every word. I have been on the witness stand for up to two-and-a-half hours being examined and cross-examined.
On one occasion I was asked by an attorney to test a prisoner in a county jail who had an extensive history of concussions and mild traumatic brain injuries (TBIs) to help determine his cognitive-linguistic functioning, write the report, and prepare to present my findings in court. (With a heavy wire mesh between us, it was not a standard testing environment.)
The California Bar Association asked me to be listed in its annual directory as an expert witness in the area of speech-language pathology. One year I was the only speech-language pathologist listed.
Although I find being retained as a forensic speech-language pathologist particularly interesting and challenging, not many clinicians enjoy or relish the idea of being in a deposition, court hearing or trial.
Certain qualifications may be especially helpful in this kind of professional work. A few essential qualifications include an in-depth knowledge of anatomy and physiology of the speech systems and a strong background in neurology and neuro pathologies in both children and adults.
It is very helpful to teach courses on a regular basis dealing with these areas. This will help you develop some level of comfort for being asked a variety of uninhibited questions.
Another essential qualification is an on-going clinical practice, not just supervision of students, in which you work with various kinds of cases on a regular basis, such as TBI, CVA, cerebral palsy, voice disorders, cleft palate and stuttering. It is essential to remain comfortable doing assessments and using a variety of evaluation treatments.
Speech-language pathologists need to be aware that the opposing attorney may have investigated your professional background to find anything that may be used to discredit your testimony.
Prepare your case well for a court hearing or trial presentation. Do all appropriate testing, sometimes backing up tests with tests; use standardized testing procedures whenever possible; use the scoring system developed for the instrument chosen; and use the standardization and norms for each instrument.
The report requested by the retaining attorney should be precise and detailed, with a variety of causes considered for the problems presented. The speech-language pathologist needs to know exactly what was written in the report because an attorney will question statements made in it. You must say in your report what you want to say in court.
The opposing attorney may choose another speech-language pathologist to assess the person you assessed, and that clinician's report and testimony may be used to refute your results and testimony.
As a retained expert, you should carefully read all available records, including the other speech-language pathologist's report, and all documents that may have a bearing on your testimony. Sometimes the available documents may be hundreds to thousands of pages long.
Keep in mind that expert witness speech-language pathologists do not represent the plaintiff or the defendant; they simply are providing objective evaluations and testimony that may be beneficial to either side. It is very helpful to consider yourself an educator who is simply trying to educate the jury on a person's strengths and weaknesses.
The goal, as always, is to present "the truth and nothing but the truth." (Interestingly, attorneys are not sworn to tell the truth, but witnesses are.)
It is essential that you stay within the areas of your expertise. An attorney who has retained you may try to get you to say more than you can professionally defend to help his or her client. The opposing counsel will try to do the same. Be firm in stating what you can and cannot say in writing and in court.
If you feel the attorney who has requested you as an expert witness is less than competent or professional, it is wise to decline the request. As a retained expert witness, you have that option; but if you are subpoenaed, you do not. Likewise, "percipient" witnesses, or treating therapists, do not have the option to decline testifying.
It is very helpful to run through your testimony with the retaining attorney prior to your court appearance in order to discuss cross-examination and stress on the witness stand. Go over with the attorney what testimony is expected, what you can expect in the courtroom, and any particularities dealing with the case. Prior to testifying, review the entire case file.
When going to court, dress conservatively and comfortably. Appearance counts in helping identify you as a responsible professional.
Do not sit with the attorney or client who has enlisted your service because this implies that you may be biased and supportive of the client.
You can help the court reporter by providing your business card so he or she has the correct spelling of your name and your correct title. If requested, bring several vitas or resumes to provide to the attorneys and judge.
When being questioned about your credentials, highlight the pertinent areas. It is important that you don't take it personally when an opposing attorney attempts to discredit your credentials because it is simply an attempt to discredit your testimony.
An expert witness must be able to maintain poise when being questioned by a judge or cross-examined by an attorney. Use words for all responses to questions, rather than head nods or body language.
Be mindful of your body language on the stand. Be open but not too relaxed. During cross-examination, do not fold your arms across your chest. Your body language and eye contact reflect your comfort level, and any lapses may be exploited by the opposing attorney.
Be certain you understand the question being asked. If there is any uncertainty, ask for the question to be repeated or clarified. Wait for the attorney or judge to finish the question before answering.
Pause after the question is completed to keep yourself from responding too quickly and to indicate thoughtful consideration of it. Do not answer more than what is clearly asked.
Look at the jury or judge when answering questions, not just the attorney. Speak slowly and clearly and use complete sentences. Do not argue or be witty; your most important strength is your professionalism.
Recognize the attorney's lack of knowledge about your area of expertise. Be engaging with the attorney who has retained you and expand your answers as appropriate. Be brief with the opposing attorney.
Develop a rapport with the jury by being candid and explanatory so a layperson can understand the complexities of the speech, language, cognitive or swallowing problems involved in the case. Provide an explanation as if you were talking to a neighbor.
You can provide an informed opinion by saying, "With a reasonable degree of probability...." Do not be afraid to state your opinion, as long as you can back it up.
Be succinct. Avoid generalizations about what experts agree on. Do not volunteer information.
Visuals, charts and other aids can be helpful; but keep in mind that they likely will be marked as evidence and held by the court after you testify.
Your testimony is only a segment of all the testimonies being presented in the case. Don't overestimate the importance of your role; it is not likely to be pivotal to the case, although it may be pivotal to your future work as an expert witness.
When you finish your testimony, acknowledge the attorney's thanks, step down from the witness stand with dignity, and walk out of the courtroom. You have done your professional job.
For more information, contact Paul T. Fogle, PhD, Department of Speech-Language Pathology, University of the Pacific, Stockton, CA 95211; (209) 946-3230; or e-mail: firstname.lastname@example.org. Charles Hastings, attorney at law, of Stockton, is gratefully acknowledged for his review and suggestions for this article.