Obviously, direct examinations are important because they are the only way to tell our story and thereby persuade the trier of fact of the rightness of our position. (1) As once told to Robert Sullivan and Bob Langdon by a successful trial lawyer: “An expert is not going to win your case for you, but he sure can lose it.” (2) I asked the leading experts, attorneys and consultants in the country to tell me what tips they have for preparing your expert for direct examination.Here is what they told me: There are five main aspects to focus on when preparing your expert witness for direct examination:
1- Giving: What will you give them?
2- Getting: What you must get from your expert, in order for her or him to be effective.
3- Seeing: What does the jury need to see while your witness is testifying?
4- Listening: What does the jury need to hear to understand your side?
5- Story telling: Good lawyers are master story tellers. Great lawyers make their experts sound like master story tellers.
GIVING
Here is what you give your expert to prepare him or her. I call this the “expert’s tool box”:
Give your witness a clear idea of your goals and a clear understanding of what you need and why you selected them. Let them know what you need them to say, within the confines of the truth, of course, and what information can be damaging and therefore should be avoided. (3)
Cross examine your own witness on the stand. This takes the wind out of your opponent’s sail and gives your expert an opportunity to explain those issues that can be easily misinterpreted.
Prepare your witness as much as possible and make sure they have reviewed all the materials in their file. Do not assume they will do this on their own. (4)
Teach your witness the “magic words” or legal standard he or she needs to testify to. For example, in a personal injury case the expert must testify with “a reasonable degree of medical certainty.” (5) It is also imperative for your witness to understand the difference between medical causation and legal causation. (6) Other key words include probability vs. possibility, reasonable certainty, unreasonably dangerous, standard of care, defect, among many others. (7)
Create an outline for testimony and stick to the sequence of questions you have outlined for your witness. (8) The last thing you want to do is throw your witness off.
Make sure that you review the entire contents of your expert’s file with them to avoid any potential impeachment evidence. (9)
Organized file folders with tabs so experts can go directly where they need to and avoid stumbling around. (10)
GETTING
The expert witness is called that for a reason. Here is what you must get from your expert in order to present your case in a successful manner:
Give your experts an opportunity to reveal their weaknesses. Most attorneys research their expert witnesses before preparing them for trial. Of course, you want to make sure they do not have a history of being vulnerable to attack from the other side. However, be careful not to miss an opportunity to learn about your witness’ other strengths and weakness by going directly to the source. After you have gained your expert’s trust, ask them point blank: What are your weaknesses? If they tell you they don’t have any, get another expert (give them the boot). Once they reveal their own vulnerabilities you can deal with them together. (11) Address any potential problem ahead of time, not right before the witness is going on the stand. (4) More on this when we review the general tips.
Make sure you know everything about a potential expert witness prior to hiring them. Ask them about his or her prior experiences, if he or she knows your opponent, if he or she has testified for your opponent, if he or she have written any papers or articles that contradict the opinion they are giving you. (12) You can find an expert for pretty much any issue in your case – the problem is you often do. (2)
The truth. First and foremost, your expert must be truthful. The truth is always consistent. Jurors like consistency. (13) Jurors look for inconsistencies and when they find them, they are unforgiving.
Listen carefully…and wait until the entire question is asked. (13)
Answer only the question that was asked. (13)
Have your witness provide you with a list of questions they need you to ask in order to provide the information necessary for a complete and accurate explanation. I call this “playing Jeopardy!®” with your witness; Once you have established what the jury needs to hear, give your expert the answers and ask him or her what the question is. Use those questions in court.
SEEING
As we all know, a picture is worth a thousand words. It will not hurt for your expert witness to have access to demonstrative aids. Knowledge can only be imparted by seeing. Language by itself is meaningless since language is nothing more than symbols. In order for the jury to “know” they need to see what the expert is trying to teach them. Jurors will not find for what they do not understand:
Bridge the knowledge gap by use of visual aids and analogies. (2)
Set some time aside to work with your witness and graphic design consultant to create compelling presentations and exhibits for them to use in court. Use graphics, electronic trial presentation, media, animations, and illustrations to ensure testimonial variety during the presentation to obtain greater attention and focused explanation of his or her opinion. (14)
It is imperative for your expert witness to face the jury and look them in the eye when answering your questions. The jury members are the ones who need answers in order to make a decision on your case. This is so simple, yet so influential. (15)
Provide compelling side by side visuals comparing what a product should have done and what a defective product did. (17)
Use a combination of high tech electronic presentation and low tech display boards. (1) Make sure all documents are legible.
In court, stand in a place where the jury can see both your witness and the visual aids they are using. (1)
Make sure your expert witness dresses appropriately and cleans up before going to testify, if necessary. “The best prepared expert limits their value as a direct witness with an off-putting personality; a disheveled appearance; an excessively sweaty brow; an irritating cough; or a voice akin to the proverbial nails on the chalkboard. In the attorney’s quest to find the most qualified and least expensive expert, the attorney should be mindful of the personal demeanor of the expert.” (16) Ultimately, you want the most qualified expert at a fair cost. Do not forfeit dollars to earn pennies. (17)
LISTENING
Jurors will listen to your expert and evaluate his or her credibility. What does the jury need to hear and how do they need to hear it? You should coach your witness to speak in a way that is appealing to jurors. Make sure your witness can answer the questions, “Why am I here?” and “Why are we right?”Jurors will hear everything but you want them to listen to the key information:
Teach, don’t preach. (18)
Give juror’s the reader’s digest version. (18)
Jurors appreciate concise and organized presentations – make sure your expert can give one. (19) An electronic presentation will help reinforce what your expert says with what the jurors see on the projection screen. (17)
Encourage your expert to sprinkle in information about his or her accomplishments throughout the examination. This will give your witness more credibility. (11)
Jurors are more likely to believe your witness if they are saying “this sounds like common sense.” (20) One of the best ways to simplify complex concepts is by explaining them through the use of analogies and providing effective demonstrative aids so your jurors can visualize the concept. (17)
STORY TELLING
Half the fun of listening to a good story is becoming engaged in the presentation.
Engage your jurors (students) by explaining all your basic premises before moving on to advanced concepts. Show your work in writing, smile and be engaging. (21)
Focus on three main ideas, as that seems to be what most people can store easily in their memory box. Suggest that your expert let the jury know when to focus on a point by starting his or her sentence with “this is important” and then using a visual aid to drive the message across. (2)
Make sure your expert witness’ testimony fits into the story you are telling the jurors.
Ensure your witness understands that they are one piece in the “large jig-saw puzzle of the trial”. (22) However, make sure they understand the entire case.
Ensure your witness presents her or his opinion in context that corroborates persuasiveness of the issue. (14)
Ensure your expert witness’ testimony weaves in the theme of your case. (23)
Set the stage for jurors by giving your witness a good introduction.
Tell the story to alert jurors – preferably in the morning.
GENERAL TIPS
When you have multiple expert witnesses testifying, lead with your best punch. Your first witness should be strong, as they will give an overview of what facts jurors need to understand in order to arrive at a favorable decision.The key is for your expert to always explain the “why” to show jurors: why we are right. Role play with them as if you are the host and they are the guest in a television interview. Ask them to teach you everything you need to know. (24) Let the witness prepare you. (25) Play clips of opposing expert’s deposition and ask your expert if they agree or disagree. This way you are able to cross examine their expert through direct exam of your expert and take the wind out of their sail by asking your expert the “why “question. (26) Instruct your expert witness on how to answer complex questions. For example, as lawyers you know the difference between subjective and objective findings but the jury may not, so don’t be afraid to follow with, “What is the difference between subjective and objective, Doctor?” (10) The Kabbalah of litigation teaches us that words are just symbols; your expert should use analogies to explain complex concepts. Another option is to follow expert Doug Carner’s advice:“Ever since I began providing extremely detailed written reports, every case has been dismissed or settled without requiring my testimony. With over a 1,000 cases under my belt, this has been a huge cost savings for my clients and time savings for the courts. This has the added benefit of increasing my revenue since I make more money in the lab than I do in testimony.” (27) Finally, remind your witness to bring all their materials with them and make sure your witness is willing and able to stay at the courthouse for as long as necessary. (12)
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Bibliography
1. Russell S. Jones, Esq. Top 10 Things to Know about Persuasive Direct Examination. [Online] (2012). http://dritoday.org/feature.aspx?id=306&goback=%2Egde_4032205_member_103653073.
2. Robert Sullivan, Esq. and Bob Langdon, Esq. Developing Memorable Expert Testimony. [Online] (2008). http://www.smctriallawyers.com/documents/articles/Trial.Article_.10_.08_.pdf.
3. Nora Rousso, Esq.
4. Stephen Sambol, Esq.
5. Jeffrey Lapin, Esq.
6. Barry Snyder, Esq.
7. Ed Van Dorn, Esq.
8. Jack Murray, Expert.
9. Thomas Nielsen, Esq.
10. Wayne Partenheimer, Esq.
11. Stuart Ollanik, Esq.
12. David O’Dea, Esq.
13. Irwin Kramer, Esq. Ten Tips for Testimony: Preparing for the Witness Stand. [Online] (2010). [Cited: ] http://www.avvo.com/legal-guides/ugc/ten-tips-for-testimony-preparing-for-the-witness-stand.
14. Howard Franco, Esq.
15. Fatima Ismail, Consultant.
16. Brian L. Sirota, Esq.
17. Dan Reyes, Trial Consultant & Litigation Support Expert
18. Daniel Schneck, Professor. Virginia Tech.
19. Scott Redman, Esq.
20. Stanley Curbo, Consultant.
21. Chuck Bailey, Esq.
22. Bill Ruskin, Esq.
23. Jeffrey Rollins, Esq.
24. Mary Wolverton, Esq.
25. Bonnie Orden, Esq.
26. Jim Kamanski, Esq.
27. Doug Carner, Expert.