by Captain Kirk Greiner
I recently attended a seminar on expert witnesses. One of the panel participants was a well-known and highly respected Federal Judge who shared his candid views on the subject of experts. This article is based on his views and do not necessarily reflect the views of the author.
The judge recommended against the use of experts unless absolutely necessary. In his opinion, the least creditable person to a jury is a person who is paid by one side to present his views. In amplifying this, he said to use with caution those who made their living as an expert witness.
These words may be surprising to many who feel that an expert witness is essential because many of the issues which must be addressed would not be within the common knowledge of the trier of fact. However, he said if possible handle this through the use of fact witnesses and the skilful cross examination of the other side's witnesses.
In his opinion, the excessive use of expert testimony exacts a high price against the side that presents it. Attorneys and witnesses who prolong a trial do not get the sympathy of a jury or judge.
Where an expert is used the judge said, spend time with him carefully preparing his presentation. Use visual aids to reinforce his testimony. For instance, if asked to list the reasons for an opinion, have them written on a placard. As the witness states each reason, uncover it on the placard. While the placard cannot be entered into evidence, it can be used most effectively during closing argument.
One way to prepare an expert witness is to go over the questions which he will be asked on direct examination while videotaping him. A play back of the video will be most helpful to the expert in evaluating his presentation, particularly if he is not an experienced witness.
He continued, be careful not to have a "canned" presentation. Some of the suggestions made above may appear to create "canned" testimony, but if the witness does not try to act, or repeat memorized testimony, the result should appear natural and not stilted. The purpose of the "rehearsal" is to enable the expert to present his views as concisely and clearly as possible.
If the expert is deposed before the trial, he should keep his answers short. Stay away from the narrative and answer with "yes" or "no". I do not share the view of the Judge in this respect. Statistically, almost 90% of the cases will settle out. Thus it behooves the side presenting the expert to have their views presented as fully as possible to reinforce the settlement demand. Of course, if the case is a weak one, the Judge's position is far better since you would not want to volunteer any weakness that the other side has not already found.
Most jurors have not been to college. Therefore when qualifying an expert, the judge suggested that the attorney guide or lead (an area where the questioner can lead) him through his qualifications. Narrative responses appear to be puffing. The expert should be modest in response to the questions. Bragging will alienate the jury.
Two examples bring out the difference in style and effect of the presentation.
Q. Tell me about your background?
A. Well, I went to MIT where I graduated first in my class with honors. I received the award for the best student in widget technology. I then went on to graduate school in widget technology at the University of Widgets. That school is the best school in the nation on widget technology. Again, I was the top man in my class and received awards in . . . My paper was on bionic adaptation of widgets in moon walking robots. It was used by NASA in the development of the Moonwalker one.....
Would this be better presented to a jury as follows:
Q. What college did you go to?
A. MIT.
Q. Did you get a degree from MIT?
A. Yes.
Q. What was the degree in?
A. Widget technology.
Q. Isn't it true that you graduated first in your class?
A. Yes.
Q. You also received a number of important awards too, didn't you?
A. Well, I guess you might characterize them as such.
Q. Tell us what those awards were?
A. Widget technology man of the year....
Q. Did you go on in graduate work?
A. Yes.
Q. Where was that?
A. At the University of Widgets.
Q. Isn't that university known as the top school in widget technology.
A. I guess they have that reputation.
Q. Etc.
The questioner has retained close control of the witness and the witness does not appear to be bragging or puffing.
The judge said the expert should avoid an appearance of trying to "sell" the trier of fact on his views. State them as a matter of fact. Leave the selling to the attorney in his closing argument.
An expert should be persuasive. He should not be glib and have an answer for everything. He should speak honestly, be straightforward and tell it as it is.
In a change from what some attorneys have said, the Judge strongly recommended against the witness talking to the jury or the judge. It isn't natural to receive the question from the questioner and then turn and answer to the trier of fact. Look at the questioner. In state courts, the questioner may be able to stand in front of the jury so that the witness is facing the jury. Eye contact with the jury can then be natural and persuasive. But in federal courts, the questioner is restricted in his movements and cannot stand in front of the jury. The witness should then respond naturally to the questioner.
The most successful witness is one who acts naturally. Trying to act a part comes across as just that - an act - and can be detrimental to the side presenting the witness. Don't try to manipulate the trier of fact. Stay away from the narrative. The questioner must skillfully lead (without leading) the witness through his testimony.
The judge indicated that during questioning of a witness, the questioner should use transition statements to separate one area of testimony from another. An example is:
"Now I'd like to move on to a new area. We are concerned with . . . How do you...?"
This is not objectionable and provides the trier of fact with a clear outline of the issues being addressed.
Lastly, the judge stated an attorney should not let the cross examiner summarize the testimony given by the witnesses on direct examination - "Didn't you testify on direct that ....?" Object!! The record speaks for itself.
In summary, the word from the bench is, use experts judiciously, prepare them well, and don't waste the judge's or jury's time with redundant or prolonged testimony.
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