When working with expert witnesses, it is important to understand that they can be easily overwhelmed by a trial setting, making proper coaching and preparation essential. After all, every expert is human, and the courtroom is a naturally stressful environment.
As a follow up to Deposing an Expert Witness – 6 Tips for Success, we’ve caught up with nine top litigators who shared their best advice for working with expert witnesses during trial.
Try to bring out your expert’s original professional persona. Most experts have or had some other profession besides being an expert witness. They might be or have been a professor or a CPA or an engineer. If you can bring out that part of the witness when he or she is testifying—the inner accountant or professor—the witness will appear to be more like their original profession and less like a professional witness. That might involve asking some technical questions in the field. Even if the jury does not understand the answer, and they frequently won’t, they will hopefully see the witness’ enthusiasm for the non-legal subject matter. That will tend to enhance the witness’ credibility.
Michael Bierman – McKenna, Long and Aldridge
Discusses in detail both sides of the case so that the expert can be prepared for any eventuality. Often times in divorce cases, the expert hears only the minute details from the side he or she is testifying for and not everything from the other side’s point of view. Make sure he or she hears ALL of it! Furthermore, when going over what he or she will say on the stand, coach them to do so with authority and firmness. Don’t over explain anything. If an expert witness does this, the judge (and jury) may find the expert witness desperate to make his or her point. Straight forward answers with no hesitation is necessary.
Steve Mindel – Feinberg, Mindel, Brandt and Klein
Prepare the expert witness to never get defensive or emotional on the stand. Advise the expert that it will not help if he or she does not appear neutral before the court; an expert should answer questions–not narrate why your client should win. You should request that the expert listen carefully to questions that are asked, and to trust you to ask the right follow-up questions.
Michelle MacLeod – MacLeod Law Firm
First, when you address the jury, pretend that you’re addressing high school students. By that I mean, keep things simple. Don’t use multi-syllabic words, don’t try to impress anyone. We, the lawyers, will point out your credentials. You, the expert, should keep it simple. Use lots and lots of diagrams and other demonstrative aids. People get bored. They get really bored with technical materials. So, bring pictures, diagrams, models, and anything else to keep it exciting.
Wayne Cohen – Cohen & Cohen
I make sure to get a laymen’s understanding of their testimony and elicit that as a follow up to their initial testimony. This is especially helpful with a jury or if the testimony will be on a real technical subject. I also prepare the expert to speak in short answers, so as to not overwhelm the judge, jury, or court reporter. It’s important for experts to be cognizant that I will walk them through the points I’m trying to hit on their testimony. Rather than just saying everything they want to say at once.
Bryant H. Dunivan – The Law Offices of Michael J. Owen
As an expert, your body language is as, if not more, important than the content of your testimony. Crossing your legs or folding your arms in a defensive posture, and covering your face does not convey an air of believability. Plant your feet comfortably on the floor, stand up straight, uncross your arms, palms facing up, and don’t cover your face while you talk. Make eye contact with the decision maker (the judge, if you’re testifying during motions in limine, and the jurors during the jury trial). Point your heart straight at that person, show you have nothing to hide.
Spend at least some time in the courtroom where you will be testifying well in advance of your testimony as well. You can sit in the audience and get familiar with the space, the judge, and courtroom personnel. When it’s your turn to testify, you will be on familiar ground, and feel much more comfortable.
Omar Figueroa – Law Offices of Omar Figueroa
Before trial, the expert needs to re-read not only his / her expert report, but also their entire deposition transcript. You might have a 7-hour deposition transcript – the expert needs to read through this document in its entirety. The goal is to keep their testimony consistent with the deposition. If the expert was prepared for their deposition and performed well, that should not be a problem. There could be some rough spots in the deposition, you will have to clean those up without it appearing that the expert has changed their position. If the expert testifies one way at a deposition, and another way at trial, you’re toast. Their credibility is shot.
Jonathan E. Pollard – Jonathan Pollard LLC
If you are an expert, dress professionally, but don’t overdress or underdress. Dress as you do within your profession. A jury isn’t likely to believe an automotive repair expert in a tuxedo or an accountant in flip-flops. You (the witness) control the pace of cross-examination. Don’t let opposing counsel rapid fire questions at you to get you flustered. Take your time and think before you respond to each question. Make sure you understand the question and limit your answers to what is asked (unless it requires further explanation).
Stephen E. Grauberger – Franklin Business Law
I have prepared dozens of experts, from pharmaceutical experts to forensic damages experts, for everything from depositions to trial. It’s all about the show.
An expert witness is often opining on difficult and often controversial facts and subjects that go to the heart of the case. As such, there will certainly always be counterarguments to what they are presenting. It is therefore crucial to be fully prepared for cross examination – where they will need to confront these difficult counterarguments head-on. I often spend days preparing my experts to skillfully explain why the underlying facts supporting counterarguments are either irrelevant or otherwise explainable. Above all else, it is crucial for an expert to stay confident. They should not let opposing counsel shake them in any way from their position, especially when before a jury. I try to prepare my experts so that they remain steadfast and resolute in their position, and so they have the confidence to remain so. The jury will recognize confidence, and attribute that confidence to being correct.
