COURTROOM TESTIMONY OF THE EXPERT WITNESS

Professional consultants are experts in their fields; however, what makes these consultants good expert witnesses is their ability to communicate. Knowledge alone is not sufficient. The ability of the witness to show logical rezoning by means of story telling, which is more easily comprehended than technical jargon, is the key to jury comprehension. The following are suggestions for choice of language and visual aids that are important elements of testifying

CLEAR COMMUNICATION OF KNOWLEDGE

The way that the expert witness is questioned alludes to the confidence the attorney puts in the expert. Curt questions are less impressive than letting the expert tell the story. Order and placement of testimony also has a bearing. It is generally thought to be best to refute the other side’s testimony before presenting one’s own thoughts. Strongest arguments should be placed at the beginning. The first one to testify always has the edge as they are less likely to be tuned out; however, the most recent testimony can be the deciding factor in a controversial issue where no judgements have already been made.

Often the expert has no say concerning the order or the style of testimony; therefore, these suggestions are generated for consideration by the attorney who employs the expert witness. Few experts ever rehearse a question and answer scenario of their testimony. Rather, the attorney will turn to the witness during coffee and say, "This is what I’m going to ask you,…are we all set?" The attorney is relying on how well the witness performed during the deposition and assumes the performance will be the same in the courtroom. However, there should be a difference between the demeanor of the witness when being deposed versus court room demeanor – during a deposition a witness should be more reticent. The more information given, the more likely that statements from the deposition will be mentioned during court testimony which could give the appearance of contradiction. Also, the amount of information provided and the style in which it’s presented during the deposition makes it easier to opposing counsel to find an expert that will refute it. Being reticent in the courtroom, however, will give the appearance of being unsure or secretive. The expert needs to be overly cooperative, willing to educate, and thoroughly narrate his/her opinion.

NARRATIVE

The expert must clearly communicate to the jury his/her perspective in arriving at a particular opinion. The

most persuasive trials are those wherein the lawyers present the issues by use of story telling techniques. The expert should act as a character that tells one portion of the story. People can relate in the same way as they do to a good book or a movie.

Consider this forensic economist’s story telling technique in explaining the methodology used in a wrongful death case. "As we make a forecast of a person’s future income we must forecast the growth rate in the future. So in making a judgement about the appropriate or inappropriate growth rate, a considerable amount of research goes into gathering that data, but once the data is gathered, it can be used in more than one case…switching methodology creates problems…the methodology in a wrongful death should be the same regardless of which individual we may be talking about. In the basic analysis you probably would make five assumptions. Let’s go through them one by one. The first assumption would be the base salary which was being earned at the time of the accident. We assume that the facts we are given are the correct figures. The next assumption is the projection that the person will continue in the same employment until the age of 65 years … " (Baker, 1990). The point to be made is that the forensic economist takes a formula and tells a story step by step in terms that are easily comprehended by the jury. This format is much more inviting to listen to than the mundane question and answer style.

LOGICAL REASONING

Different kinds of reasoning may be employed during argument. The first way is to establish that the cause logically generates the effect that the expert is purporting. The expert must convince the jury that the effect is not a byproduct of another cause. Often when the expert witness is an economist, the controversy in testimony lies in their choice of approximating certain parameters such as the growth factor and discount rate. Their testimony can entail defending their own methodology in a sensible way so that it will be adopted a plausible means for arriving at liability. During this process, the expert can persuade the jury that this is the correct and best way to calculate the loss.

Still another way to establish good reasoning is to tie the testimony back to the credentials of the witness. Under the Federal Rules of Evidence, the testimony need only be based upon the expert’s years of experience in that they have "seen this before" and that sufficient signs exist to warrant the conclusion. Naturally the case could be depicted as generic and representative of hundreds of others that are just like it.

WORD CHOICE

Repetition is god, just try the style slightly while conveying the same message. First you tell them what you’re going to tell them, then you tell them what you told them. The expert should begin by explaining the steps of the analysis, than give the analysis, then, in redirect, summarize via a short story. Use of personal pronouns creates psychological closeness between the witness and the jury (I,e, here vs. there, now vs, then, we vs, you, I vs, one. Have the expert talk to the jury, not to you or opposing counsel when answering questions.

The expert made reference to the defendant as "having a substantial deficit in I.Q.," for quicker comprehension say "mentally slow." Definition of abbreviated terms to be used should be made on first mention (i.e. C.P.I. – Consumer price index, O.T.S. – Office of Thrift Supervision). Many people recognize a term without knowing what it means, thus on the whole, abbreviated terms are not a good idea.

Jargon gives the appearance of inside knowledge (after all, "they do speak the language"0 and therefore should not be totally eliminated from testimony. To many it is impressive, even when it is not understood, and adds to the authority of the speaker. However, testimony that is fre of jargon conveys honesty and the person is thought to be more "down to earth". The rule of thumb is to define technical words. To tell the jury that the vessel was off the port bow running with a bone in her teeth before a gale force wind without explanation of what these terms mean is to tell them little or nothing.

The courtroom is no arena for "sugar coating" your language. Words carry power. Avoid cliches and vogue words. Use qualifiers sparingly, i.e. almost, maybe, hopefully. Powerless speech includes hesitations such as "well", and "and ah," "you know," answering questions with questions, and hedging – "I guess," "I may have." Testimony becomes more powerful when intensifiers are used such as "very" and "certainly" as they show the level of commitment of the speaker. "Can you explain that Captain X?" Reply, "Certainly,"

The expert should provide easy directions for following his/her testimony by enumeration ("my first point is…"), emphasizing certain aspects ("a particularly important factor…") restating the position ("Look at this another way…"), and inviting perspective-taking on the part of the jurors ("Put yourself in this position…" or "If you could just think about this way…"). The expert witness must not run words together – enunciate each word, and do not allow the tone of the voice to fall off at the ends of sentences.

Use of analogies is another powerful technique. Analogies tend to "paint pictures." For example, someone could describe a sharp pain as "having a hot fireplace poker thrust into your side." Figurative analogies compare things that differ considerable, such as comparing the forecast of a person’s income to an airplane taking off, leveling off, and then landing (retirement) while literal analogies compare like things such as comparing the way the present value formula is the same as investing X amount of dollars today in order for it to mature into $10,000five years from now so that junior can go to college. Analogies cause the testimony to come alive and appear more real and meaningful to the jury. The key is to make the comparisons understandable to the jury. "The key is to make the comparisons understandable to the jury. "No matter what rate we have coming down the pike, if the investment is designed properly then future inflation is going to be a wash." What does that mean? Analogies are the most beneficial when they are used to link case information to experiences that may be encountered in the everyday life of the juror.

VISUAL AIDS

Visual aids are used for three primary reasons: they provide interest, clarification, and retention. Statistics are frequently used with analogies to clarify testimony. In order to make statistics more meaningful, tables, graphs, charts, and diagrams are often used as visual aids. These are best prepared by a computer graphics expert or an artist. Nothing looks more unprofessional than bars that are not drawn with a ruler or a lopsided pie wherein the percentages do not add up.

Numerical data is hard to grasp unless it can be seen as well as heard. This is particularly frustrating for the economist. Such expert witnesses are more effective when using visual aids to accompany their testimony.

Illustrations are always better than word visual aids. Data is often better synthesized in graphic rather than tabular form. The visual aid should consist of rounded numbers but tell the jury that they have been rounded for purposes of the visual aid only (it is suggested not to round more than one decimal place as there is considerable difference between 17.6 and 18 when one is talking about millions of dollars).

Giving too much information on any one visual aid can cause confusion. The visual aid should facilitate the oral testimony. You do not want the jury to be reading and trying to figure out a complex visual aid while you are trying to testify. Use "progressive disclosure," show the material only as it is actually being discussed. The most common complaint about visual aids is that they cannot be seen.

A polished means of progression is to juxtapose information. Start out with the big picture first and then beak it down. Overhead transparencies are particularly good because the witness may be permitted to interact with the visual aid and highlight or add information as needed. Plus the information is magnified while the visual aid is small enough to put into a brief case. Layering transparencies is very effective in showing "cause and effect." For example, in a disability case, a pie chart could be very effective in showing percentage of income disbursements prior to the accident with an adjusted overlay showing how the injury affects those percentages and how disbursements are modified. Here are some helpful hints. Print graphs horizontal as vertical printing causes the viewer to have to cock the head to read it. When making a comparison between data, it is best to put the numbers in columns across fro one another rather than rows wherein the information is on top of the other. When itemizing information, use bullets dingbats, or asterisks.

Bar charts and pie charts are good, particularly when done in color. Keep color and bar schemes simple. Warm colors advance towards the audience: red, orange, and yellow are best. A light background is enhanced by use of black, red, and orange. If a graph is used, color code the line, but more than three lines on a graph becomes confusing.

The use of the blackboard in the courtroom reinforces the credibility of a professor as an expert witness. One advantage to the use of blackboards is that the information is a reminder to the jury, unless the opposing counsel thinks to erase it. And, as stated earlier, still another advantage is progressive disclosure. The information can be put up as it applies to the testimony, which may be less confusing than prepared visual aids which are hard to read, cluttered, and unimaginative. Such visual aids do more harm than good. Think of a visual aid as a road sign. It should be of single focus, simple, clearly printed, scrubbed of any unnecessary detail, and easy to read (Leech, 1985).

It is surprising how the rights word choice and the used of visual aids in conjunction with audio information increases comprehension and retention. Expert witnesses match in expertise and experience may ultimately only be set apart according to the WAY in which they convey their knowledge.

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