Sometimes a laboratory professional’s insights and expertise make all the difference in a legal case. Consider the mother who lost custody of her newborn because a test showed high levels of alcohol in her blood shortly after delivery. A year later, when the mother came to court to get her child back, Saeed Jortani, PhD, DABCC, director of clinical chemistry and toxicology at University of Louisville Hospital in Kentucky and clinical professor of pathology and laboratory medicine, agreed to provide expert testimony. “When I was reviewing the case, I noticed that the physicians of record were using the wrong units in interpretation,” Jortani said.
The result had been reported as “0.1 milligram percent,” and the physicians had assumed the units were the more commonly used gram percent. The test actually had shown undetectable levels of alcohol in the mother’s blood. “I highlighted that to the prosecution and they dropped the case right there,” Jortani said. “They realized the mistake.”
Laboratory professionals have long been key players in courtrooms, whether as forensic toxicologists or subject matter experts. They might be called to court to provide factual testimony regarding sample handling, procedures, or results. They also might choose to participate as expert witnesses, reviewing cases and offering opinions, typically in exchange for a fee.
“Most cases, both criminal and civil, involve the use of expert witnesses,” said Jim Hilbert, associate professor of law at Mitchell Hamline School of Law in Saint Paul, Minnesota. “Legal disputes often have complex elements that we need translated in order for our process to work.”
The Pressure Is On
Whether a laboratorian goes to court to give factual testimony or to offer an opinion, the rules are the same, experts said. Know the material, answer questions clearly and succinctly, and stay within your area of expertise. According to Hilbert, who teaches scientists how to testify as co-director of the Expert Witness Training Academy funded by the National Science Foundation, the main role of a scientist in court is to educate the judge or jury. “Your job is not to try to make the case,” he commented. “Your job is to simply tell the truth.”
Sticking with the facts sounds simple, but sometimes pressure rises in the courtroom to do otherwise. The attorney who hires an expert witness will push for opinions favorable to his or her case, Hilbert noted. Likewise, the opposing attorney will try to discredit expert witnesses, attacking their credentials, hiring colleagues to testify against them, and even accusing them of being untruthful or of testifying only for the money. Giving in to either side is a trap. Laboratorians should not alter their assessments to please the attorneys who hired them and they shouldn’t try to defend themselves from the attacks, Hilbert emphasized. “Just stay in your lane,” he said. “Focus on answering the question truthfully and doing it in a way that is understandable.”
Jortani, who trains pathology residents in expert testimony and has 2 decades worth of experience in court, says the reason attorneys hire him is that they know he will review the science and give an opinion without advocating for either side. “If you start being emotional and advocate anything, then you definitely will lose in this business,” he said.
Jortani is moderating a symposium about expert testimony at the 69th AACC Annual Scientific Meeting on July 31 in San Diego. In this session, lawyers and laboratorians will participate in mock trials based on actual cases, including a murder trial and a laboratory error case.
As an expert witness, laboratorians need to stay calm and composed in court, even when a colleague they respect tries to discredit them, Jortani noted. “You have to have a very tough skin when you do this,” he said. “You have to be able to accept criticism. You have to be able to hold your posture, be very patient, and just answer the questions.”
Jortani once testified on the opposing side of his colleague Steven Wong, PhD, DABCC (TC), FACB, a professor of pathology and director of clinical chemistry and toxicology at Wake Forest University School of Medicine in Winston-Salem, North Carolina. It was an emotional case about the death of two babies. Afterward there were no hard feelings, both said. In fact, they ended up co-authoring an article on the case.
The key to good testimony, according to Wong, is to support opinions with evidence, resisting the pressure to over-interpret results, and speaking clearly. “It’s very hard to describe nanogram per milliliter to a jury,” he said. “So the way we say it is, I’m able to find a needle in a swimming pool or I can find my wife in the football stadium.” Even highly educated judges typically haven’t taken a science class since college, so scientists should target their testimony at about the high school level, Hilbert added.
Of course, not all legal cases carry the intensity of a courtroom or speaking directly to a judge or jury. “Most cases involve reviewing documents, forming an opinion, and writing a report,” said Fred S. Apple, PhD, DABCC, medical director of clinical chemistry, clinical and forensic toxicology, and point-of-care testing at Hennepin County Medical Center and professor of laboratory medicine and pathology at the University of Minnesota in Minneapolis. “Very few cases actually go to court.”
Apple has been working on court cases for 30 years. Attorneys approach him because of his role in the forensic laboratory and also his work in and publications involving cardiac biomarker research. In all those years, only seven or eight times has a case made it far enough that he was asked to appear in court.
What Laboratorians Should Expect
Laboratorians working on a court case must thoroughly understand all the documents they’ve been given, as well as the evidence that supports their opinions, Apple emphasized. “Attorneys are often going to be very well prepared,” Apple said. Laboratory professionals also need to stick to their areas of expertise, Apple said. “I’m a PhD, I don’t see patients,” he noted. “I’m not going to offer opinions on treatment of patients if it’s not something I do.”
Rob Shelton, of the personal injury practice Shelton Law Group in Louisville, Kentucky, and a scheduled participant in the mock trials during the AACC Annual Scientific Meeting symposium, said a good expert witness is knowledgeable, articulate, and has experience in front of a jury. Expert witnesses typically are paid an hourly rate, and the amount varies widely based on geography, experience, and reputation, Shelton added. “There is no fee schedule anywhere,” he said. If an attorney asks you to set your rate, “call around and ask your colleagues what they charge.”
While the work can be lucrative, it is best to wait to be approached by an attorney rather than advertise one’s services as an expert witness, according to Shelton. Advertising leaves the expert open to criticism that he or she testifies only to make money and gives biased opinions. “If I’m looking for an expert, I always prefer to find one who does not advertise his or her services,” Shelton said.
One way to start as an expert witness is to help a local medical examiner on cases, according to Jortani. A solid working relationship with the medical examiner might result in a recommendation to attorneys in need of experts. Performing well typically leads to more work, he added.
Participating in court is rewarding, Jortani said, because even an expert witness invariably learns something new, and also because of the potential impact, like when that mother was rightfully reunited with her child. “You make a huge difference in somebody’s life or livelihood,” he said. “Your presence could be quite instrumental.”
Julie Kirkwood is a freelance writer who lives in Rochester, New York. +Email: [email protected]