A case manager has been called to testify as an expert witness. As part of the proceedings, the case manager must first be qualified, which involves answering a series of questions posed by attorneys for the plaintiff and the defendant. Suddenly, the judge stops the proceedings and asks the jury to be removed from the courtroom. The reason, unbeknownst to the jury, is that a motion in limine has been made to exclude certain medical records.
For the next 2 hours, attorneys for both sides question the case manager regarding certain medical records. All this time, the jury waits in the jury room, not knowing what is happening in the courtroom or why they have been ordered to leave. By late afternoon, the judge retires to make a decision about the motion to exclude certain medical records, which takes until the following morning.
The jury is dismissed for the day, having "wasted" (at least in their view) several hours, doing nothing. From the jurors' perspective, the trial is dragging on, keeping them from their jobs, and disrupting their daily routines. In their frustration, they cannot help but think that the reason for that day's delay has something to do with the expert witness.
The next day, the judge makes a ruling and the case manager is allowed to resume his/her testimony. By early afternoon, the case manager is back on the stand as an expert witness. No explanation is ever given to the jury as to why the proceeding was interrupted. The questioning resumes.
As this scenario shows, the case manager who is an expert witness needs to be aware of the important technical points of testifying. The Commission for Case Manager Certification's Code of Professional Conduct for Case Managers provides guidance whether a case manager is a "fact witness," who testifies about certain firsthand experience or knowledge or an expert witness who has expertise to explain aspects of the case. As the Code states, "Certificants, when providing testimony in a judicial or nonjudicial form, will be impartial and limit testimony to their specific fields of expertise" (Commission for Case Manager Certification, 2005).
The case manager as an expert witness must also understand both the psychological and the emotional aspects involved in juries' perceptions to communicate effectively and to convey trust and credibility. Most importantly, this involves objectivity.
Educating The Jury-The No. 1 Priority
As an expert witness, the case manager's number one priority is to educate the jury. Regardless of whether the case manager is testifying on behalf of the plaintiff or the defendant, as an expert witness the case manager is no longer an advocate for a client (meaning the person receiving services).
This shift can be challenging for case managers who spend their whole careers as advocates. As an expert witness, however, the role changes to become an objective "teacher" who presents material and information neutrally. It benefits no one-neither the plaintiff nor the defense-if the case manager as expert witness adopts an advocate's role to convince a jury of what must be done for this person or what he/she needs.
As a competent professional, and most likely one who is a Certified Case Manager, the case manager/expert witness must convey complex and technical information in a way that the jury can understand and that appears relevant to the case. The case manager/expert witness must meet the standards set by the Daubert decision, whereby the Supreme Court provided a framework for expert witness testimony in the courtroom (Muller, 2007).
The Daubert standard requires that the expert witness be reliable and comply with guidelines listed by the Supreme Court, such as the following: whether a particular methodology has been tested, there is a known or potential rate of error for a particular methodology, a technique has been subjected to peer review and publication, and the technique has been generally accepted in the proper scientific community.
The Daubert standard is congruent with excellence in case management, particularly objective documentation and reporting. Each case manager needs to be mindful of his or her role and take pride in his or her accomplishments in the field of case management. Documentation is the way in which we demonstrate compliance with policies, procedures, and standards of practice but the critical piece is "follow through" (Muller, 2007).
Connecting With The Jury
When the case manager is testifying as an expert witness, several emotional and perceptual issues come into play they are as follows:
* Jurors judge experts on how relaxed they appear and whether or not they make eye contact with the jury. Jurors are continually evaluating the expert's honesty and character; whether the witness is perceived to be answering questions in a straightforward manner. If the information being presented is too technical, jurors may rely heavily on the witness' nonverbal communication, including how real, confident, warm, and enthusiastic the expert seems.
* Experts who become defensive or who display advocacy during cross-examination lose credibility. The case manager who thinks he/she can remain an advocate on the witness stand will actually undermine the jury's ability to understand the facts of the case.
* Jurors may not be impressed by the expert witness' credentials, rather by how much actual experience the person has with the subject matter. Hands-on experience usually means more to jurors than the "alphabet soup" of credentials that a person has after his/her name.
* By the time an expert witness is called to testify, a trial may have entered the second week. By this time, jurors may feel exasperated, tired, and bored, and not receptive to processing complex information. The expert witness, therefore, must be able to simplify things as much as possible and present them in a clear and engaging manner.
As an expert witness, the case manager's task is to educate the jury, making the complex and the highly technical into more comprehensible concepts. A very important role of the expert witness is to present and explain information neutrally and objectively-even though that means taking off the "advocate's hat." Presenting information in this way, the case manager's knowledge, expertise, and communication skills are most valued-for a fair outcome for all involved.
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