Witnesses

Witnesses

The U.S. system of justice depends heavily on finding truth through the courtroom testimony of witnesses. The testimony is highly constrained by the rules of evidence and the lawyers' efforts to present only the material that is supportive to their cases and detrimental to that of their opposition. These constraints can be frustrating to witnesses, who often come away from a trial or deposition with the feeling that neither side wanted to hear the truth.

Witnesses are asked to present either facts or opinions. Most witnesses are fact witnesses; they have personal knowledge of either the incident that underlies the lawsuit or the persons involved. Anyone may testify as to facts; only an expert may present opinions. Fact witnesses are usually laypersons who have little experience in the courtroom. Cross-examination is more effective with these witnesses than with experienced expert witnesses.

An expert, such as a physician, may be called as a fact witness in areas that are outside his or her expertise. For example, a physician may have witnessed an automobile accident. A physician may be a fact witness when a case involves a person whom the physician has treated. The physician may be asked to testify as to the fact of the patient's injury, the treatment rendered, the cost of the treatment, and the current condition of the patient. These are matters of fact contained in the patient's medical record. Questions about the patient's prognosis, however, require an expert opinion. It is this requirement of special qualifications to render opinions that separates fact from expert testimony.

The most important fact witnesses are the parties themselves. The jurors' sympathy for the plaintiffs versus the defendants is an important determinant of their ultimate verdict. The plaintiffs in a medical malpractice case must convince the jury that they have been injured and that they are deserving of compensation. The defendants must convince the jury that they deserve to be vindicated. Trials are partly personality contests, but the best way for a defendant to be vindicated is to convince the jury that the medical decisions were correct.

Most litigation requires the testimony of expert witnesses. In a contract dispute over the sale of land, for example, there will be testimony by an appraiser as to the value of the land. In cases involving personal injuries, there will be testimony as to the seriousness of the patient's injuries and prognosis. In litigation involving the negligence of a person with special skills or training, there will be testimony as to whether these skills were properly exercised. For example, in medical malpractice litigation, the plaintiff must present the testimony of an expert who believes that the defendant did not care for the plaintiff properly and that this breach of professional conduct caused the plaintiff an injury. This testimony may come from a consulting physician engaged only to review the patient's medical care or from a physician who treated the patient. A treating physician who also renders an opinion on the quality of the patient's care would be both a fact witness and an expert witness.

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