We spoke with eight leading trial consultants about the most common mistakes they see expert witnesses make and how you can avoid them.
1) Exaggerating Their Support (Hired Gun)
One of the most basic issues trial consultants are working against is the hired gun effect. This is an expert who is too willing to shape their opinions around their hiring attorney’s case theory. This instantly erodes their credibility in the eyes of the jury. According to Alexandra Rudolph of Rudolph Trial Consulting, one of the major biases an expert witness faces in a courtroom setting is the general perception of experts as “hired guns.” This bias assumes an expert will invariably support the side that has retained them.
Be comfortable with Disagreements
In order to avoid this perception, Rudolph advises experts to be comfortable with occasional disagreements with retaining counsel. Overall, this is the consensus among the rest of the trial consultants. “If you are asking what would be my single most important advice tip to the attorney hiring an expert to testify—be aware of the overzealousness of an expert to try to please you,” said Alan Cohen of Jury Insights.
Angela Dodge, the founding partner of Dodge Consulting & Publications, agrees as well. “An expert who attempts to answer questions that go beyond their knowledge and skills, who cannot say, “I don’t know” or “I’m not certain” (i.e., admit limitations) when that is the truthful answer, who appear disorganized and ill-prepared, and who cannot concede obvious points, is an expert who probably should have assistance from a professional trial consultant or litigation psychologist.”
2) Failing to Communicate
Though all expert witnesses have a deep knowledge of their chosen subject, the ability to communicate technical insights to the laypeople of the jury is not universal. Whereas one expert can have a gift for distilling complicated ideas into simple concepts, many others lack the communication skills.
Speak to the jury
According to Dodge, “At trial, the primary goal is to make certain the expert is a “juror educator” rather than an expert witness. Too often, experts speak to the attorneys rather than the jurors.”
“A common complaint in post-trial interviews with jurors is that the experts used language that was too technical or employed jargon unfamiliar to most people. An expert who is a poor listener (e.g., answers questions they want to answer rather than those asked), who uses technical jargon and seems unaware that their testimony will be heard by jurors and not by colleagues,” Dodge adds.
Improving the communication skills of an expert is one of the main areas of focus for many trial consultants. They utilize mock trials, practice depositions, and realistic reenactments to develop an expert’s ability to communicate with the jury effectively. Many trial consultants will also assist in the development of visual aids and graphics designed to clarify the expert’s analysis to the jury.
Use visual aids
Cynthia Veneciano of Imaging Presentation Partners incorporates courtroom graphics and visuals at every stage of her process. “We start the preparation of the expert’s testimony by assembling all the visuals that will accompany their testimony. Jurors, like the larger society, are visual learners. Jurors report that seeing what an expert has to show is more valuable to them than hearing what they have to say. You can usually tell whether an expert is ready to testify by the timing of their answers and speed of speech. Experts who ponder their answers too long risk appearing to be hedging their answers. In just such circumstances, jurors may develop doubts about the expert’s credibility and candor. Jurors have high expectations of expert witnesses and may not appreciate the subtle nuances of a question or the answer,” she explains.
Trial consultants’ tips largely focused on two main areas: speech and body language. “I help witnesses insert short gaps of silence between phrases and sentences,” says Brian Johnson of Johnson & Hunter, Inc. “During these short pauses, the witness can think, and so can the listener. Cognitive psychology refers to this as “chunking.” Simply put, our brains like information in chunks.”
remember body language
In terms of body language, experts should not appear uncomfortable, aggressive, or disinterested. “Use palms down gestures (like a push-up) when planting important points. Use palms-up gestures to convey honesty and collaboration. Never point or make choppy gestures,” says Susan Constantine of Silent Messages. She also advises experts to avoid constricting body language and to speak with a deeper tone of voice in order to project confidence.
3) Not Being Prepared
Any success in a trial setting requires careful preparation. But one of the most frequent issues for expert witnesses is incomplete preparation. “I have seen my share of experts who manage to totally screw up at deposition or at trial,” said Alan Cohen. “Most recently, I did jury selection at trial in which an aging expert confused what side he was supposed to be testifying for—I know it’s hard to believe.” Mistakes of that magnitude are rare. However, a jury may turn on an expert after even minor missteps or slips of the tongue.
“While jurors typically are tolerant of occasional hesitance and a moment of thoughtfulness when a complex or hypothetical question is asked, an expert can lose credibility quickly if their conclusions are based on faulty or incomplete case facts,” said Steve Tuholski of Empirical Creative. Alan Cohen agrees, “Almost always, expert preparation should include not only the defense of the underlying methodology and conclusions but must take into account opposing theories and provide plausible explanations of why those opposing theories lack credibility and should be discounted by the jury. An inexperienced witness is likely to need at least some basic work on the process of testifying as well as the expectations of jurors.”
If you’ve done your homework on an expert’s qualifications, you should not have many issues with an expert who is out of their technical depth. However, it is much more common to run into issues with your chosen expert’s communication skills. “In general, experts are seasoned witnesses and know what to answer,” says Cynthia Veneciano. “However, it is not uncommon for expert witnesses to struggle with how their testimony is perceived by the trier-of-fact.”
Cynthia also explains that much of this perception comes down to nonverbal cues. “Some experts may find that they need extra attention in how they are delivering their testimony before they “go live.” When we work with an expert witness (or any witness) before deposition, we like to start with the basics and build on the prep session with a videotaped mock cross examination. The goal of the videotape is to allow the expert to see how they come across non-verbally. Non-verbal behavior is critical to an expert’s credibility. It’s an important consideration when a recorded deposition can be played back to a jury.”
4) Sharing Too Much Information
Over-sharing is one of the most prevalent communication issues among experts. Many academic experts are accustomed to an instructional atmosphere. Though others may simply be eager to discuss a topic that they are passionate about.
Keep Answers Concise
“Experts are expected to respond to questions with complete and reliable answers,” explains Robert Ray of Veritas Research. “However, some experts (often those who are ill-prepared or lack confidence) will answer with wandering explanations. These explanations can drown the intended answer in a tsunami of expert babble. They may also dwell on details that don’t matter and/or are confusing to the jury. A simple and confident “yes” or “no” and crisp, concise explanatory answers are most effective in persuading jurors.”
Occasionally, an expert’s tendency to overshare can be a symptom of their desire to support the attorney who retained them. “Sometimes, the expert tends to exaggerate/overreach the extent of support they can give to a particular case theory. When on the stand, the expert may end up qualifying a statement about ‘always’ or ‘never’ to a much less powerful statement. This has the double whammy of undermining the expert’s credibility and the attorney’s overall case theory,” Robert explains.
In order to avoid the mistakes that can come from a tendency to overshare, it is important for your expert to relax. Robert adds, “If the expert is leaping to answer too quickly without thinking, I ask for a slow, deep breath after hearing each question and before beginning the answer. This floods the brain with oxygen, allows a moment to think before speaking, and prevents a witness from blurting out an inartful answer. A deliberate breath also dissipates adrenaline’s negative effects.”
5) Poor Appearance, Delivery, or Presentation
Last—but certainly not least—the visual impression that your expert leaves on the jury is almost as important as the substance of their testimony. For an expert’s opinion to have the desired impact on the jury, they must appear calm, collected, and confident.
This is something that opposing counsel will often try to take advantage of during cross examination, notes Steve Tuholski of Empirical Creative. “A crafty trial attorney can make an expert uncomfortable. They can make an expert look defensive or unsure of their testimony during cross examination. Jurors rarely have their own technical yardstick to determine an expert’s ability or the validity of their testimony. In those instances, they will often rely on their own gut-level instincts as to an expert’s credibility. Jurors tend to discount witnesses who act defensively or respond inappropriately in terms of their body language. So it’s important to find out how an expert will respond to difficult questions. Then we can identify and correct any weak areas where jurors may be sensitive.”
Practice, Practice, Practice
Trial consultants conduct realistic practice sessions. These will identify potential problem areas before the expert testifies. These rehearsals replicate the stresses of a courtroom environment, as well as the adversarial process of cross examination.
Cynthia Veneciano says, “We recommend preparing the expert in much the same manner as a fact witness. We record a rehearsal in which the attorney asks the questions and the expert responds using the visual aids/graphics. Watching the prep session back can alert the trial team to any weaknesses the testifying expert may be displaying. It also provides an opportunity to offer suggestions and strategies to strengthen the expert’s testimony.”
In addition to pre-trial preparations, there are also tactics that experts can employ during trial to maintain their composure and credibility. One area of focus for trial consultants, in particular, is appearance on the stand. This is where clothing and body language can play a vital role in the quality of expert testimony.
“The body, coping with adrenaline while testifying under pressure, needs the release of natural hand gestures in order to look more comfortable and testify more credibly,” says Brian Johnson Johnson & Hunter, Inc. “This flow of gestures assists the flow of thoughts and words, according to recent gesture research. It also channels and dissipates adrenaline.”
The expert’s choice of clothing can also make a major difference in the impact of their testimony. According to Susan Constantine, an expert should, “Dress according to the image your attorney has created. For example, in a domestic violence case, I would not suggest the plaintiff dress in a power suit. Rather, dress in a way that sends the message of softness or vulnerability (pastels and soft fabrics).”
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