Effective direct examination of an expert witness is crucial when it comes to a bench or jury trial. It is extremely important for any practicing trial attorney to know what to ask in order to ensure the judge or jury hears the information that will make them favor the attorney’s client. Below, we’ve broken down the process of executing a successful direct examination that will maximize the attorney’s chances for a successful outcome at trial.
1. Keep Your Goals in Mind
The goals of direct examination are to prove your case, to tell your story, and to make the jury trust your expert more than the other party’s expert. The best way to prove your case is to make sure all the facts regarding your claims or defenses are recorded into evidence. In doing so, make sure your expert uses the exact language of the jury charge in discussing his or her conclusions.
Once all the facts are laid out for the witness, you should ensure he or she recounts the facts in a way that tells the story of your client. Have the expert prove his or her conclusions within the context of the story. For example, instead of simply listing the conclusions, the expert should relate each conclusion to instances that occurred within the client’s story, in a chronological matter that parallels the way it occurred to the client.
Lastly, ensure the expert is presented in a manner that appears credible to the fact-finder. After all, having an expert establish every last element of a case is meaningless if no one believes the expert. An attorney can show his witness’s credibility by discussing the witness’s background thoroughly. This can both show that the expert is qualified as well as show that the expert cares about his or her field of expertise in a way that they would only take a case they truly believed in.
Jurors may also determine credibility through an expert’s personal appearance and the communication between the attorney and witness. So it is important to keep these factors in mind along with the expert’s background. Also, although an expert witness must not do so on every answer, it is prudent that they state their level of certainty (i.e. ‘a reasonable level of certainty in the field of X’, or ‘a definitive level of certainty in the field of Y’). It is often wise to include such phrases in the question to the expert. Thus alleviating their responsibility of stating it.
Additionally, keep in mind that during cross-examination, most jurisdictions will allow opposing counsel wide-latitude in the cross-examination of an expert witness’s credibility. Therefore, it is wise to choose an expert that will have the least “baggage” that will need to be explained away in cross-examination. As it is difficult to find an expert that doesn’t have at least one past view that was contradictory to their findings in your case, it may be wise to pose an open-ended question during direct examination that grants the expert an opportunity to explain this previous “baggage.”
2. Carefully Order the Examination
Most direct examinations beginning with the qualifications, followed by general beliefs and opinions on the subject matter at issue, then case review and work done in the case, and finally an application of general beliefs and opinions to the case facts.
As far as the application of the general beliefs to the facts of the case, be wary of your jurisdiction’s rules on experts opining on the ultimate issue. While the federal rules (FRE 704) and many states allow experts to do so, some do not. Whenever there is a doubt, it is wise to phrase the question less directly. For example, instead of asking, “Did X negligently cause Y’s injury?” ask , “Were the actions taken by X likely to negligently cause someone in Y’s position the type of injury Y suffered?”
After direct examination follows cross-examination, which is again followed by an opportunity for a re-direct examination. During re-directs of your expert witness, an attorney may ask questions within the scope of the cross-examination. However, even if this cross-examination was extremely broad, it is often advisable to simply have your expert restate his or her strongest opinions, rather than paying too much attention to the results of a cross-examination. This may give legitimacy to those results themselves by simply acknowledging that they are worth battling over.
3. Know Your Rights…and Limits
State and federal rules exist that grant trial courts the authority to control the scope of direct examination. These rules are often broad and allow for much discretion to the courts. For example, FRE 611 instructs trial courts to exercise “reasonable control” over witness examination in trials, so long as they protect the parties rights to “have an opportunity to present his view of all issues fairly raised.”
Two rules that exist in federal court and across most state courts are that cross-examination is limited in scope to topics covered in direct examination, as well as witness credibility. Furthermore, leading questions can not be used with a party’s own witnesses. An attorney should know these rights and restrictions in the jurisdiction they plan to present witnesses in, and should also research the trial judge presiding over their case, and take note of lenient or restrictive tendencies of that judge found in his or her previous cases.
Attorney’s should also note that, where no leading questions to one’s own witness are allowed, the attorney should cover topics and points that he or she wishes the expert to put on record during trial. However, it is important to avoid “scripting” the witness’s testimony. This often raises eyebrows with the fact-finders, and also may restrict the preparation level of the expert for anything that may take them “off-script” throughout their testimony.
4. Qualify Your Expert
Qualifying an expert is important for a multitude of reasons. First of all, as noted above, it is an opportunity to create a good first impression on the fact-finder, and to show them how credible your witness is. It is also important because of the high occurrence of FRE 702 Daubert challenges that occur in cases involving expert witnesses. If such a challenge is made, the qualifications you put on the record during the trial will be what the judge deciding this motion bases his or her decision on.
So what qualifications should an attorney present? While it is important to make note of all the experience, honors, education, and research the expert has performed in the field, an overly in-depth and meticulous introduction may not be ideal. Instead, focus on experiences most specifically relevant to the case.
How should an attorney present these qualifications? Experts can be admitted to testify at trial either by presenting the expert and his or her credentials to the court at trial, or by adversary counsel agreeing to stipulate the expert’s expertise. It is wise to accept the stipulation if you believe there is any chance your expert could be vulnerable to a FRE 702 challenge. However, if you are confident that your expert would pass such a challenge, it would be wise to decline the stipulation and take the opportunity to introduce your expert to the jury on a more personal level.
If a court is pressuring you to accept a stipulation, but you would still like to achieve this goal of gaining reputability with the jury on behalf of your expert, then consider asking for a compromise. Where you accept the stipulation but can still review key highlights about your expert before examination. When doing this, however, keep in mind that the expert should do most of the talking, and not the attorney, in order to achieve this goal of gaining trust with the jury. Ask them questions that allow them to speak in detail about their experience and qualifications, ideally in a chronological manner, with an emphasis on experience related to the case at hand.
5. Present the Expert’s Opinions
Two ways to elicit the ultimate opinions of an expert are through hypothetical questions, and having the witness explain the basis for his or her opinion.
Unlike with lay witnesses, expert witnesses may answer hypothetical questions, as opposed to questions based solely on their knowledge of the facts of the case. This can be most useful when an expert is not fluent in the facts of the case. When asking a hypothetical question, make sure the components of the question match up perfectly with the components of the case.
As far as basis for opinions, the modern approach dictates that experts may state an opinion without first testifying to the underlying facts or data. However, not all jurisdictions follow the federal trend, so any attorney should double-check these requirements before trial. In general, it is better in the eyes of the jury if an expert explains his or her reasons for any opinion, so a wise attorney ought to walk the expert through many of the key facts and inferences of the case.