Presenting expert witness testimony is always a pivotal moment during a trial. Oftentimes, it is the first time that the factfinder hears from a subject matter authority on the more scientific or technical aspects of a case. This is, by definition, the function of an expert witness—a uniquely qualified professional able to aid the trier of fact in understanding the evidence or a fact at issue. In light of an expert’s particular knowledge and experience, as well as their understanding of critical case issues, their testimony can be exceptionally persuasive. This presents all the more reason why their examination should be meticulously conducted.
Direct Examination: The Basics
A direct examination of a witness— expert or not—refers to the procedure during which they are questioned under oath by their party’s own attorney. In other words, these are the individuals, either plaintiff or defendant counsel, that retained the expert to testify. During direct examination, an attorney questions the expert on their credentials, their qualifications in their respective field, and then delves into the substantive issues of the case.
In contrast, a cross examination is when the opposing counsel questions this same witness. In cross examination, the sole purpose is to extract information that can be helpful to the opposing side’s case theory. Because the direct examination occurs first in the order of a trial, it also presents an opportunity to preemptively defend against any potential attacks an expert might experience during cross examination. Below are some tactics to employ to ensure that the direct examination of your expert witness is as beneficial as possible to your case.
Plan, Plan, Plan
The most airtight method to ensure a smooth direct examination of any expert witness is through plentiful planning. Preparing for a direct examination happens well before any of the parties enter the courtroom—ideally at the time of retainment. When an attorney is first engaging with a potential expert witness, they should hear the expert’s general opinions of the facts at issue. If an expert does not agree with the attorney’s case theory, then they should not be retained. Even if an expert’s professional opinion presently aligns with an attorney’s theory of the case, attorneys must also look into their past public opinions—whether in the form of trial testimony, depositions, or published works. Conflicting or evolving expert opinions could hand the opposition a ripe area of attack for cross examination.
Further, the line of questioning for the direct examination should be adequately prepared by both the attorney and expert well before the trial. Although not all examinations should read like a strict script, there is value to practicing the questions to ensure that all relevant facts are presented in both an informative and straightforward way. Most importantly, the direct examination of an expert witness should not contain any surprises that can sidetrack or undermine the purpose of their testimony.
Presenting an Expert’s Qualifications
Prior to any substantive testimony during a direct examination, the attorney must first establish that the witness is, in fact, sufficiently qualified to testify as an expert in their respective field. This process, referred to as a voir dire, is a line of questioning that focuses on the expert’s qualifications, such as their education, licenses, job experience, and training. The specific questions that are asked can vary widely depending upon the specific profession of an answer. Generally, an attorney should inquire into the following areas:
- The expert’s current profession and title
- The expert’s formal educational background and highest degree earned
- Any licenses or board certifications held by the expert
- Any additional training undertaken by the expert
- The number of years in their field and the different titles held by the expert
- Any academic works, such as journal publications or studies, authored by the expert
Once all credentials are properly established, the judge will rule to admit their testimony as that of an expert and then the substantive testimony can begin.
The Art of Direct Examination
There aren’t any bright line rules concerning the style and form of a direct examination, so long as the necessary information is presented to the jury. That being said, some methods may work better than others, depending on the case. Some experts may benefit from testifying to the facts at issue chronologically. For example, if a treating physician is testifying as to a plaintiff’s injuries, it might be helpful to start by explaining the plaintiff’s first appearance at the emergency room, the diagnosis, and then any subsequent treatments or procedures as the injury or illness progressed.
On the other hand, sometimes it is beneficial to begin an expert’s testimony by presenting the biggest bombshell or attention-grabbing piece of information. For example it may be especially impactful to begin with an expert testifying on whether an injury was proximately caused by a defendant in a negligence case, or whether a defendant in a criminal trial suffered from a mental illness that affected them during the alleged crime. This format takes advantage of the theatrical elements of a trial and helps keep the jury interested. In either situation, it is important for the attorney to allow the expert to take the reins. All questions should be as open-ended as possible, permitting the expert to showcase their knowledge unencumbered.
During a direct examination, the expert witness may also refer to certain exhibits that are entered into evidence. As a general matter, all evidence admitted through an expert should be evidence familiar to the expert and that they can adequately explain to the jury. Sometimes, this requires the use of demonstrative exhibits, such as charts or graphics, that help illustrate more complex or technical pieces of evidence. Though direct examination is more of an art rather than a science, its overall goal is to aid the fact finder in understanding the case basics while also presenting evidence that supports the case theory.
Building Trust and Credibility
A highly qualified expert with education and experience is a great start, but some qualifications for a successful direct examination are not as easily quantifiable. If an expert is not viewed as trustworthy by the jury, their testimony is effectively useless—no matter how factually accurate. This is where an expert’s likeability and engagement comes into play. An expert should present themselves as both knowledgeable and relatable in their delivery of complex information. Experts should avoid legalese or scientific terminology and should use everyday language whenever possible. Furthermore, the typical verbal and non-verbal mannerisms that we all associate with professionalism should be on exhibit during direct examination. An expert should strive to be poised, well-spoken, and polite to the attorney, judge, and jury.
Considerations in the Pandemic Era
Like most procedures in today’s day and age, COVID-19 has drastically affected courtroom trials. With some courts resuming jury trials, there are certain safety measures, such as distancing jurors and mandating face masks, that are changing the trial experience. These changes may affect an expert’s ability to communicate effectively with a jury. Since the beginning of the pandemic, some courts have opted to conduct virtual proceedings via video or teleconference, and may now include bench trials as well. Testifying through virtual technology presents another slew of issues, from the expert’s ability to retain engagement to staying on track with questioning during technical glitches and outages. Although these format changes may make testifying more difficult for a witness, the above tips can help ensure not just a successful direct examination, but also a favorable outcome of the case, even during unprecedented times.