Tips for preparing for court

Anne Smith, Director, VFPMS 2019

What sorts of (Vic) laws apply to

doctors working with children?Including but not limited to…

• Children Youth and Families Act 2005– Child Protection / Youth Justice / role of “State”

• Child Safety and Wellbeing Act 2005– Out of Home Care / monitor OOHC system / CCYP

• The Crimes Act 1958– Crimes against the person

• Heath Records Act 2001

• Privacy and Data Protection Act 2014

• Betrayal of Trust laws (2017)– Grooming

– Failure to Protect

– Failure to Disclose

• FV Information sharing scheme (re RISK & Family Violence - started 2018)

What are the Courts in Victoria?

What are the Courts in Victoria?

MOSTPaediatricians’ casesSome

INVESTIGATIONS by Child Protection

VICTORIA

27,979

VFPMS 741 face to face

+ 866 consults

105 subpoenas

VFPMS 2017 COURT TESTIMONY = 12

KEY MESSAGE

Most (almost all) of what we/you do to protect

children and improve the quality of their lives

(safety, health, relationships, development,

culture, better trajectory) has nothing to do

with going to court!

Preparing for Court – SEEK ADVICE

What should I expect?

How can I ensure that I do a really good job?

Advice will depend on which court, particulars of your case, what information you can offer and your PREPARATION and ATTITUDE

Performance may depend on a range of unpredictable factors

The Subpoena

Lawyers & protective workers have authority to subpoena your /records.

Discuss your availability - a time least inconvenient for you / your patients.

Affidavit or a written report or statement INSTEAD?

2 hours “stand-by” rather than waiting at the court?

Phone the person who issued the subpoena ASAP- discuss your options.

COURT TESTIMONY

Effectiveness depends on CREDIBILITY

Credibility depends on

Preparation – Know your patient, Know your role

Impartiality

Honesty

Keeping within the confines of your expertise

Familiarise yourself with Court process

Seek advice from experienced peers.

Understand the layout of the court, the process of presenting your evidence and how to address the decision maker(s)

Know what will be expected of you as a witness. Be prepared to be flexible because no one can predict all eventualities.

Talk to the barrister before court

If you have been subpoenaed by protective workers, talk with the allocated caseworker, their supervisor or someone in DHS legal unit.

If you are not able to talk to the barrister well in advance of your court appearance attempt to arrange to meet them at court for a brief discussion before you give your evidence.

Dress to impress.

First impressions matter

Your credibility depends on how you look as well as what you say and how you say it

Aim for power dressing – dark-coloured suit

Minimal ‘frills’

Keep still

Look directly at the ‘key players’.

Be polite

Be courteously helpful.

Regardless of the degree

of provocation –

always remain

excruciatingly polite.

You are who you are

Be proud of who you are.

You are expected to have only the knowledge and experience that you could possibly have acquired given your age, training, and exposure to relevant clinical material.

Be factual, be polite but NEVER apologetic!! No-one will expect you to know more, do more, or see more than you have.)

Objectivity

An expert witness does not compromise objectivity by defending, forcefully if necessary, an opinion based on the experts specialised knowledge which is genuinely held

but may do so if the expert is, for example, unwilling to give consideration to alternative factual premises

or is unwilling, where appropriate, to acknowledge recognised differences of opinion or approach between experts in the relevant discipline.

guidelines from the Federal Court of Australia

Recognise weakness in your evidence

Identify weaknesses in your evidence that might relate to bias, loosely defined terms or to test results.

Most tests are not 100% sensitive and specific

At the start of your evidence, admit if your report needs to be corrected or amended.

Better for you to correct it early, than a barrister highlight deficiencies in your work at a later time.

Your Attitude = Impartial & Helpful.

Mantra : Integrity and professionalism. I am not on trial… It’s my job.

Be courteous and honest.

Give concise but comprehensive answers.

Your honesty and professionalism should be displayed more prominently than your wishes to advocate on behalf of the child.

Attitudinal preparation is probably most important aspect of your preparation.

Court Process and Rules

Remain outside the courtroom until it is time to hear your evidence.

Oath or affirmation?

Sit or stand?

Your evidence will be heard in a three-stage process.

Evidence-in-Chief

Cross Examination

Re-examination

Leave the courtroom, giving single polite nod to magistrate, judge or coroner

Do NOT discuss the case until the hearing has concluded.

Address the decision-makers

Direct your answers to those who are making the final judgement

Point your feet towards the decision-makers . Always turn from the questioning barrister to answer decision-makers

Your answers will be framed to appeal to a reasonable person

Don’t watch the wandering barrister.

Anticipate respectful cross-examination

Maintain your body posture and tone of voice.

Treat all barristers in a similar manner.

It is the defense barrister’s job to cast doubt on your evidence. For example, the barristers may attempt to demonstrate that you are not qualified to make a valid assessment of the child, are incompetent or negligent, are ill educated or ill informed, are mistaken, biased, rigid and not able to consider alternative explanations or you are simply a pompous arrogant person who cannot be believed.

The overall issue is one of credibility.

not (in)competence

Flattery precedes a fall

If a barrister is being especially pleasant and flattering - BEWARE!

When asked if you really are a clever expert with a wealth of experience answer with a factual statement about your experience.

It throws the barrister off course and tells the decision-makers that you will be accurate at all costs.

Never be “smarter” than barristers

A) It is too easy.

B) You run the risk of annoying

the barrister, the judge and

the jury, which is just what

you do NOT want to do.

Better to say “you moron”

under your breath and hope

the judge and jury feel the

same way!

Control your temper

Be obsequious – stay away from trouble!

Look at anyone other than the barrister inflaming your temper. Place your hands in your lap or on the witness-box to avoid making a clenched fist. Look totally unfazed.

Avoid any signs that may indicate that you feel flustered, annoyed, impatient or irritated.

Never allow yourself to be intimidated

Doctors experience less intimidation than other witnesses.

Never “give in” and say something misleading or incorrect because you feel bullied. Always insist on being 100% accurate.

Remain extremely calm.

You are highly unlikely to actually faint, vomit or lose sphincter control.

Response to “yes or no” questions

There is no obligation, legal or otherwise, for any witness to just answer “yes” or “no”.

You may say “it isn’t a “yes” or “no” question”.

You may wish to expand and discuss the variables which influence outcome.

You may wish to conclude that one alternative is most likely but other alternatives are also possible

Double questions

Commonly used “lawyer tricks” - a rolled-up question or two questions in the one sentence.

For example, “Could the child be making this up because she wanted more attention?”

• “Could she be making this up?”

• “Is her reason for doing this to get attention?”

Say “There are two parts to this question”.

Answer each part in turn.

Two-part question with a true-true-non sequitor format. Clarify that although both parts of the question are true, part 1 does not cause or explain part 2.

Offer opinions only when invited

Unlike other witnesses, expert witnesses are allowed to offer opinions when directed by the court.

Try and always back up your opinions with observational data and, if necessary, with evidence from available literature.

It may be useful to do a quick MEDLINE search or check the Cochrane Library to ensure you are cognisant of all the relevant & up-to-date information.

Consider alternative explanations

When asked to consider an improbable scenario LOOK as though you are really thinking about your answer.

Talk in terms of “is”, almost certain, probable, possible, undetermined, unlikely, highly unlikely, & almost impossible

or “I can’t imagine a sequence of events whereby that could occur but if you can think of one I am happy to consider it.”

Unless you are specifically invited to speculate do not comment on anything other than the facts before you.

Answer questions completely

Interruptions and interjections from barristers might prevent you from completing your answers. “Play on” if the matter is not important.

Interjections are part of the game. Barristers have to convince their clients they have done some work!

If it IS important and you MUST expand your answer to give the court the whole truth

– ask, “ Your honour, may I complete my answer?”

Know

when to

let go

Debrief

Self recriminations?

Barristers were too good? I could do better?

Remember that your task is to present your part of the evidence to the court; not to convince a judge or jury that the defendant committed the crime.

The judgement and the sentence are not your responsibility.

After it is over - let it go.