NEVER (SEE) YOUR CASE THE SAME WAY AGAIN

Expert Witness Performance

Expert witness testimony, used effectively, can be a powerful tool to positively influence juror perception of a case; however, expert witness testimony, often more than any other aspect of trial, also has the potential to alienate and confuse jurors. At best, poorly communicated expert testimorny may be written off as irrelevant; at worst, it leads to resentment against the presenting attorney and the client's case. When jurors listen to expert testimorny, whose case ends up on the cutting edge of the blade?

While most expert witnesses possess a mastery of their subject, they often are naïve and uninformed about trial conduct, are not likely to initiate assessment of how their testimony ties into the big picture of your case, and are rarely exposed to any substantive evaluation or feedback of their testimony. Often, “Thanks. Send me your bill,” are the last and only comments an expert witness gets after testifying.

Before addressing the criteria jurors use to evaluate expert witness, it is necessary to better understand the expert’s fundamental role in relation to the jury. An expert witness serves to act as investigator, educator and evaluator for the jury. As an investigator, the expert helps identify the facts most important for the jury to learn. As an educator, the expert helps the jury to understand those facts and put them in context of the trial. As an evaluator, the expert helps guide the jurors’ conclusions and arms them with the arguments they need to prevail in deliberations.

The first step in preparing an expert for trial is to review the overall trial context,the expected strategy and tactics of direct and cross examination; the nature of the judge and his/her biases; opposing counsels’ history, anticipated strategy and methods; the make-up, biases and expectations of the jury; the anticipated length of trial and the expert’s role and positioning in the trial.Welcoming the expert witness as member of the trial team so that the expert can take ownership of his/her testimony requires adequate comprehension of all these important aspects and nuances of the trial.

Most important, an expert witness must be required to take ownership of his/her testimony and not be led by counsel or coerced into rehearsed testimony. After building the foundation of basic understandings, let the expert "be" the expert in preparation sessions and let the expert express his views on the case, and the impact he anticipates his testimony should have on the jury’s understanding. Ask the expert what aspects of his testimony does he feels will likely shed great light on the case and what aspects of his testimony are likely to be misunderstood or cause confusion? After allowing the expert control of his testimony, counsel can then come back and suggest what opinions are relevant for the expert to share with the jury, and outline with the expert the main points that the expert would like the jury to remember about the his testimony. Counsel can then begin to hone that testimony into integral components of the overall case story, and work with the expert to showcase high points and reinforce weak spots to meet the objectives of the trial.

Also push the expert to assess personal assets and liabilities--the expert’s strengths and weakness of knowledge, personality, communication skills, and presentation style. Videotaping mock witness testimony is a great aid in this process of evaluating and improving the mechanics of an expert’s testimony.

Videotaping expert witness preparation sessions often gives the expert the rare opportunity to observe and evaluate his or her testimony. Again, let the expert be the first to critique his own performance and offer suggestions for improvement in order of his testimony.

To improve the mechanics of expert witness testimony, it is important to understand the characteristics or criteria that jurors will employ to evaluate the expert. Just as the expert must be versed in the basic foundations of the trial, it is imperative for both the expert and counsel to understand these juror criteria or run the risk of negating the expert’s testimony and negatively impacting the jury.

The four main criteria jurors use when evaluating an expert witness are credentials, expertise, credibility, and objectivity.

Credentials

While all four criteria are important, jurors find credentials to be the least important. (The rare exceptions regarding the importance of credentials are the existence of clear, direct identification with a widely-recognized "expertise brand" such as a Nobel Peace Prize, the Mayo Clinic, or a Harvard professorship, or celebrity-status fame).

Jurors are often suspicious of, and grow impatient with, lengthy lists of credentials. Keep juror attention focused by initially presenting only the minimum credentials needed to qualify the witness. As the examination proceeds, indirectly incorporate credential information into the direct examination. ("Is that the subject on which your doctorate thesis at Harvard was based on, Dr. Smith?"). Additional impressive credentials outside of the necessary requirements for the immediate proceedings can best be presented at the end of a successful testimony.

Ultimately, however, it is usually in counsel's best interests to hire likeability before credentials. An expert witness who can break down barriers between themselves, the facts, and the jury, and who can take jurors aboard an exciting journey of discovery, is far more valuable to the trial than a dull, dry expert with an extensive list of credentials.

Expertise

 

The first question jurors often ask themselves about an expert witness is "Does this witness have information that will help me reach a verdict?" Nevertheless, jurors consistently rank expertise as the third most important characteristic. The main reason for this is that while jurors dearly value true expertise, if they cannot understand the expert's testimony, or worse, do not believe the expert's testimony, then the witness' expertise does not matter.

 

Thus, witness expertise is necessary but not sufficient. In order for the expert witness' expertise to be effective, the expert must first be understood and must convey a sense of interest and passion for the subject. If the expert witness does not appear to care about the subject, how can the jurors be expected to care about the expert's expertise? In response, allow opportunities in direct examination for the witness to both teach (using excellent diction, complimentary word choices, and well-formed sentence structure) and preach with confidence, passion and authority.

 

Credibility

 

The second most important criteria for jurors when evaluating expert witness testimony is credibility. Two rules of thumb to keep in mind when addressing credibility are 1) that strong emotional fidelity increases credibility while inconsistency destroys it, and 2) that simple is perceived as more truthful than complex answers and explanations.

 

Strong emotional fidelity can best be increased by reducing differences in the expert's emotion during direct and cross-examination. A common error is to over-prepare the expert for direct testimony at the expense of preparing for cross-examination. This often leads to a lopsided testimony from which two differing portraits of the expert can arise--one that is cool, prepared and calculated, and another that is defensive, angry, and unprepared. Preparation for direct testimony should never eclipse or be given more importance than cross examination preparation.

 

Plan to increase conflict and emotion during direct testimony. Separating the expert's opinion and knowledge from that of counsel will help to not only establish juror perception of a more independent witness, but will increase conflict to direct testimony, and make the direct testimony more closely match what jurors will hear during cross examination. Conversely, it is important to work to reduce conflict and emotion in cross-examination. The expert should agree pleasantly with factually correct matters presented by opposing counsel, or disagree politely and move on into the same investigative, teaching and evaluating mode he conveyed in direct examination.

 

Anticipating key weaknesses in the case and preemptively addressing them in direct testimony is another useful strategy to boosting credibility. Case weakness can sometimes be diffused or favorably positioned when presented proactively, or even forgiven when the expert is forthright about the weakness at the outset--before the expert and jury are forced to endure repeated emphasis on the matter by opposing counsel. At the very least the expert’s weak card has been shown to the jury of his or her own accord, building trust with and reducing surprises to the jury, and preventing a potential later unreeling by the expert.

 

Elimination of barriers between expert and jurors also helps increase perception of juror credibility. It is especially important to reach jurors on their level, speak in a language understandable to them and in a manner acceptable to them. Often this means encouraging the expert to climb down from his ivory tower to carefully explain the issues without being condescending or arrogant, emphasizing similarities with the jurors, and providing opportunities for humility and admission of error. Keep the expert's testimony as simple as possible.

 

Objectivity

 

The most important characteristic to jurors is objectivity. For the jurors, the best expert witnesses will demonstrate the ability to see both sides of the issue; yet will help the jurors prevail in their tough job of rendering a verdict.

 

All witnesses are believed to have an agenda and a point of view. Witness agendas that are seen as consistent with findings that could favor either side increase perceptions of objectivity. In response, emphasize the expert's broadest possible agenda. The expert might be taking the stand to maintain his or her professional reputation, to help determine the truth about the matter, or to right an injustice.

 

Witnesses who demonstrate the capability to view the case from either side’s point of view greatly increase perceptions of objectivity. Again, allowing the expert to disagree with and correct counsel, and conversely agree when possible with opposing counsel is a strong formula for conveying a sense of objectivity.

 

Another important trait that impacts juror perceptions of objectivity is thoroughness. When a witness is presented as an expert, the jury does not take a kind view of an expert who is inadequately prepared, who has not reviewed all relevant materials, and who cannot recall significant details about the case. In post-trial interviews, jurors often cite faux pas such as missing information that has to be looked up another time, incomplete explanations, or masterful descriptions of information with only negligible relevance to the case as reasons for finding against an expert witness’s cause.

 

Developing expert witness testimony that cuts for, rather than against a positive trial outcome, requires careful effort by the trial team to increase juror perceptions of an expert's objectivity, credibility and expertise. Only then can the expert witness bear the three-sided shield of investigator, educator and evaluator needed to prevail as an effective warrior for your case.