COURTROOM DYNAMICS  (Fall 90)

by Leila B. Alson

How Judges Assess Expert Witness Testimony … and other presentations.

How does an expert witness or any person addressing the court best present an opinion in testimony? What contributes to or detracts from credibility when testifying? How does voice, body language and demeanor affect a court’s perception of a witness?

As a speech and communications coach, I’m frequently called in by attorneys to work with prospective witnesses before they appear in court and, indeed, often work with the attorneys themselves on courtroom presentation skills.

Reasoning that the best way to answer these questions on effective courtroom presentation would be go straight to the source, recently surveyed twenty experienced trial judges on the subject of communication and credible testimony.

These judges, who now hear cases for the national private court system Judicate, Inc., collectively represent decades of experience on the trial bench in jurisdictions around the nation. They all spent distinguished careers on state courts before joining Judicate and are a wonderful source of experience for questions regarding testimony, courtroom behavior and trial technique.

I asked the judges to share their thought on how exactly they decided which witness to believe when faced with conflicting testimony. I asked them to comment on how mannerisms and speaking styles affected their perception of those testifying; what makes a presentation memorable and what techniques were most effective in making a presentation credible. Finally, I asked them to list which factors were most important in their assessment of an expert’s testimony.

The survey reveals many interesting insights into the art of expert testimony. I feel that every person called on to voice an opinion in court will benefit from this "view from the bench".

Here, then, are some of the representative responses appearing on the questionnaire I sent to the respondents.

"…the phrase ‘well prepared’ appeared in response after response."

Let’s examine some attitudes about testimony generally.

Question: How do you decide which person to believe when you get two different stories?"

Response:

1. "In the not-so-obvious situations, we are helped in reaching a decision by demeanor, physical reaction, eye contact and the like."
2. "Frankness and obvious sincerity."
3. "Observe whether one person covers his or her mouth while speaking: whether one is more positive in voice, tone and demeanor."
4. "Corroboration of physical evidence. If neither side proffers a preponderance, I rule against the side with the burden of proof."
5. "Appearance, way of speaking."
6. " Corroborative evidence; motive; manner of communication…care used in responding."
7. "What they say and what they remember and how they present."
8. " By listening to how they say it and observing their body language vis-à-vis their verbal communication."
9. " This is the most difficult of all circumstances and one which perplexes many judges. I have always tried to find small flaw of fact in the testimony and decide against that party. However, if you are honest, you estimate that, in fifty percent of the cases, you may have believed the wrong party."

Author’s Comments:

Significantly, more than half the respondents specifically cited such attributes as demeanor, body language and obvious sincerity, as evidence. Obviously, where neither side as a substantial advantage in terms of physical evidence or other hard proof, the testifier’s personal communication style is an overwhelming factor in credibility.

Crutch words and phrases such as "you know" and "ah" bothers many of the judges. Clearly, experts are well advised to use pauses and not till the air with sound. It’s easier for judge and jury to absorb what you’re saying when you phrase well and allow time for the listener to grasp what you have said. Pausing before and after important points helps accomplish this. Crutch words are used when the speaker is afraid to leave any unvibrated air. Rudeness and aggressiveness appeared and again in the responses and repetitive, run-on sentences were also cited. Poor eye contact was another culprit.

Staying with testimony generally, let’s examine that all important word: "truth".

Question: "Can you tell when witnesses are not telling the truth, and how do you tell?"

Responses:

1. "The logic of the story, demeanor and manner of the witness."
2. "Turning away, pretending not to understand, talking around the question."
3. "Not necessarily, but sometimes by demeanor, lack of eye contact, dropping off at the ends of sentences."
4. "Intuition, logic, evasiveness."
5. "Body language."
6. "No."

Author’s Comments

Here, evidence and logic were cited by most respondents, but demeanor, once again, is the deciding factor in cases where there is no overwhelming evidentiary advantage.

And that brings us to the primary question…about the expert.

Question: "Which factors are most important in your assessment of an expert’s testimony?"

Responses:

1. "I try to see if the expert has set up standard and then testified in accordance with those standard or contrary to them."
2. "Knowledge of his subject. Unwillingness to say whatever is necessary to bolster his side of the question."
3. "His ability to address the facts presented in the hypothetical question and his ability to communicate his reasons for coming to his conclusions."
4. "Can this expert explain the testimony on simple terms?"
5. "Credentials, experience and consistency whether on direct or cross examination."
6. "Is he forthright, straightforward and prone to terseness rather than loquaciousness? Does he carry himself erect and speak in loud tones as explanations require?"
7. "A neutral and objective response, no overstatement of opinions, apparent lack of bias."
8. Preparation, background. Not always testifying for the plaintiff or the defense on other appearances in court."
9. "Background, education, training and experience in his area of expertise and ability to convey his expert opinion to the trier of facts."

Author’s Comments

Overwhelmingly, the respondents look to the experts’ qualifications and professional background. Ability to explain their information in clear simple terms was found to be very important. Consistency of testimony also ranks high – several respondents say they take great care to spot inconsistent testimony. The message from the respondents seems to be that apparent lack of bias. Simple explanations of opinion

And straightforward, low-key testimony that doesn’t belabor any points will win the day before experienced trial judges.

Finally, let’s examine a somewhat "personal" perspective of the judges themselves.

Question: "How is emotion elicited from a judge of jury?

Responses:

1. "Lawyers have rarely elicited emotion from me, and I’ve rarely seen them elicit emotions from juries – at least that which is discernible. However, "cases" have elicited emotions from me and from jurors."
2. "The sincerity they display."
3. "Eye contact."
4. "Not from me."
5. "Appeals to fairness when they testify."
6. "Proper delivery and free flow of words without aggressiveness."
7. "I resent it when they seek to elicit emotions and cut off any attempt to do so…"

Author’s Comments

The respondents didn’t grant approval to attempts to play on the emotions of the court or the jury. Two respondents, in fact, didn’t answer this question at all. The message seems to be that "cases" may be emotional (two judges did admit to emotional reactions to fact situations, as opposed to testimony), but lawyers and witnesses may be on thin ice when they try to elicit emotional responses.

About the Author

Leila B. Alson Associates/Power Speaking is a Speech Consulting firm based in Philadelphia, PA.

Reprinted with the consent of Experts-At-Law magazine.

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