Delivering The Perfect Direct Examination – 4 Proven Techniques

When offering the testimony of an expert witness, trial attorneys often make the mistake of presenting experts as they would any other witness. But experts aren’t just like any other witness.

Christine Funk

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— Updated on April 21, 2022

Delivering The Perfect Direct Examination – 4 Proven Techniques

Unlike fact witnesses, experts are allowed to offer opinions on things that are relevant to the case at hand. When offering direct testimony of an expert witness, an attorney should not only consider how they will get the information before the fact finder, but also how to keep the fact finder’s interest and ensure their comprehension of the relevant material. At the end of the day, if only the attorney and the expert understand what was presented, the expert has provided nothing of value.

Work with Your Expert Ahead of Time

The fatal mistake attorneys often make begins and ends with prep time. It is never a good idea to ask an expert to write the direct examination questions. Nor is it a good idea for the attorney to assume what the answers will be, either based on a review of a prior transcript or based on prior experience. Every case is different. There may be facts and circumstances that change an expert’s methods, processes, or conclusions. Finally, it would be an error to simply rely on an expert’s written report. Sometimes, words have a different meaning within the context of a given scientific community than the meaning understood by lay people. Sometimes, the addition or subtraction of a single fact can change the conclusion. Meeting with the expert ahead of time is critical to a successful direct examination.

When done properly, meeting with the expert ahead of time accomplishes at least two goals:

  • ·  The meeting provides the attorney an opportunity to confirm they truly understand the issues, including the strengths and weaknesses of the expert’s methods, and conclusions
  • ·  The meeting provides the attorney the opportunity to develop a strategy consistent with the facts and good science, to present the evidence in a way the fact finder will understand

Consider Front Loading

Often, when presenting evidence, the temptation is to proceed in chronological order. This makes sense with fact witnesses, who can establish:

  • ·  First, I saw this
  • ·  Then I did that
  • ·  Next, I did another thing
  • ·  Finally, I saw something else

Next witness.

With an expert, however, unlike the lay witness, the goal is slightly different. You are not putting the expert on the stand to testify that first, they received a bit of evidence, then they analyzed the evidence, next they wrote a report. You are putting the expert on to offer a conclusion that supports your position. Consider leading with that conclusion.

Leading with the conclusion and backfilling as necessary is permitted in most jurisdictions. Once you have established your witness as an expert, consider immediately going to the expert’s findings.

  • ·  Did you have occasion to review the evidence in this case?
  • ·  After reviewing the evidence, did you develop any opinions about the evidence?
  • ·  Tell the jury your expert opinion.

Once the conclusion is out there, you can backfill by asking questions such as, “How did you come to that conclusion?” How much detail you allow your expert to get into should be something you discuss ahead of time. This is not to suggest you deliberately conceal information, rather, it is a recognition that every painstaking detail does not need to be drawn out before the fact finder in order for them to draw a conclusion about the sufficiency of the expert’s opinion.

Consider the big picture. Offer the conclusion. Give the jury what they need to know the conclusion is sound. Repeat the conclusion. Get out. The minutia of a given case may or may not be relevant. Does the jury really need to know how many drops of a given reagent were added to a solution, or the lot number, or expiration date of the reagent, in order for the expert’s opinion to be valid? They do if the reagents were expired, certainly. But if everything was done in accordance with scientifically accepted principles, detailing the process down to the last date the pipettes were calibrated and other less than relevant details will likely lose the jury.

Let the Expert Teach

A good expert is not only technically qualified, but they can also teach. If you have spent sufficient time with your expert, and selected your expert carefully, you already know they can teach in a manner the fact finder can understand. Sit back and let them do it. Consider questions such as:

  • ·  How did you arrive at that opinion?
  • ·  What methods did you use?
  • ·  Why did you select this method over another method?
  • ·  Are there other conclusions that could be drawn from this evidence?

If you have spent sufficient time with your expert, you already know the answers to all of these questions. You have also spent time with your expert discussing how to best convey scientific concepts in a manner someone with an eighth-grade education might understand. Now that you’ve done the prep work, sit back and let your expert teach the fact finder what they need to know.

Exhibits, Exhibits, Exhibits

Different people learn differently. Distilled down to the core, the three types of learners are auditory, visual, and kinesthetic. About 30 % of the population are auditory learners. These people learn best by hearing information presented to them. The problem is, 70 % of people aren’t auditory learners. In other words, just having an expert talk will not convey the information in the way that is best for the majority of the population to understand it.

Visual learners learn best by seeing information presented. Kinesthetic learners learn best hands on. Lucky for litigators, kinesthetic learners make up only 5 % of the population. The frequencies presented for each type of learner reflect the preferred method of learning. However, most of us learn best when a combination of audio, visual, and hands on information is presented. Creating an exhibit appeals to visual learners. Passing the exhibit around can give kinesthetic learners at least some opportunity to incorporate information.

Litigators, along with their experts, should put considerable thought into how an exhibit might illustrate a point. From providing a video, to creating a model to scale, to designing a PowerPoint presentation, a copy of which is distributed to the jury, having a physical and visual representation of evidence from which the expert can teach provides an effective form of communication to drive the relevant points home.

When Working with an Expert

One advantage of  expert witnesses over lay witnesses is often times, the attorney has the ability to select their expert, whereas fact witnesses are not typically interchangeable. Selecting an expert who can teach both the attorney and the fact finder is critical to successfully presenting evidence in either a criminal or civil case. Attorneys can grab the fact finder’s attention by offering the most important testimony, the opinion, first. Allow the expert to teach, especially with the use of exhibits, to provide the jury with only the information they need in a manner that is easy to digest. In tandem, these approaches better convey necessary information, and lead to a successful direct examination.

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