As an audio and video forensic expert, I often have to give depositions and also testify. A few years ago my courtroom activity was minimal. Today, it seems like more and more cases are going to trial. Prosecutor pleas are not being accepted and civil litigators are too far apart for settlement.
When the time comes for me to testify, I always carve out time to prepare on my own as well as with the client attorney. I begin by reviewing the evidence, audio or video. Then I read all communication between myself and the client. Lastly, I read my reports. When I meet with the attorney, I begin by asking them to discuss their top concerns about the case and my deposition.
One very valuable lesson I have learned is to rehearse every aspect of the testimony with the client lawyer. This includes my Voir Dire. According to Forensic magazine, ‘The voir dire examination is typically based upon perfunctory questioning about institutional affiliation and publications. The expert witness performs two primary functions: 1) the scientific function — collecting, testing, and evaluating evidence and forming an opinion as to that evidence; and 2) the forensic function — communicating that opinion and its basis to the judge and jury. A general rule of evidence is that witnesses may only testify to what they have personally observed or encountered through their five senses.’
I take the time to prepare a list of questions for the client lawyer to ask me when testifying that helps them understand my credentials. When we meet to discuss my testimony prior to testifying, we add to that list based on the lawyers concerns and experience with the case.
Audio and video forensics can be technical by nature and every once in awhile I am faced with opposing counsel that has really done their homework. One particular case happened recently where opposing counsel asked me a series of questions that were misleading in order to trip me up during a deposition. I knew the answers but was distracted by their condescending line of questioning. It caught me off guard and later I realized that I should have rehearsed this potentially harmful line of questioning.
I was asked about the science of my investigation. I had already answered by observation and experience. When the opposing counsel kept asking I thought he was digging deeper to learn the mechanics of the equipment that I had not yet investigated. In hindsight, I should have repeated my answer instead of trying to figure out the operational science on the spot. I knew the answer but was cornered because he was extremely prepared to find a weak spot in my testimony.
I have had cases where client lawyers tell me that we do not have to prepare. I push hard and offer options for our pre trial rehearsal. I have learned to ask, ‘Would you like to meet the night before or the morning of the trial?’
One last point is to always anticipate the cross examination questions and prepare your answers well in advance. That way, when you are under oath, your testimony will be smooth and nearly complete during direct examination.
Spend as much time preparing for your testimony as necessary. Since your client depends on your preparation and experience, you owe it to them to do your absolute best. Since your reputation depends on your testimony, do not feel that you must be compensated for every minute of your preparation. In fact, it’s always a good idea to give more than you have been compensated for. I like to refer to that as going the extra mile. As an audio forensic expert , video forensic expert, or any other expert witness, it’s mandatory to be prepared for testimony. Do not be distracted by the monetary aspect of your business when it comes to preparation.