Proficiency in their field is certainly a prerequisite for all who testify in court as an expert witness. But now, with the benefit of 25 years experience, I believe that a good expert witness must also qualify as an expert in communicating clearly and persuasively on the witness stand. In short, expertise in testifying is just as important as expertise in a particular field of knowledge. Here, then, are 4 tips for expert witnesses and the attorneys they work with.
Make sure that the judge and jury are fully convinced that you are, without any doubt, a true expert in your field. Proving your status as a recognized, fully qualified expert is the foundation upon which all your testimony rests. The more impressive your credentials, the greater the weight given to your testimony. For that reason, I always have several copies of my CV available for review by opposing counsel, judge, and jurors, as well as a copy that is entered into evidence.Always supply the attorneys on your side with a clear outline of facts designed to help establish your credibility as an expert witness. You can even provide them with a list of suggested questions that will help substantiate your qualifications in a succinct, logical manner. It has been my experience that if I do not earn the respect and trust of the jury before presenting the facts, then my testimony will fall on deaf ears. Similarly, make a list or an outline of the order and substance of the points you plan to make, and provide it to the attorneys who have engaged you as an expert witness. There is no one more qualified than you to suggest a line of questioning to follow during your direct examination. You have a broad overview of the beginning, middle, and end of your investigation, the story of what you found and how you found it. By their very nature, people are constantly attempting to make sense of their experience. Psychologists have found that one of the ways they do this is by creating narratives, forging links between the facts of their experience and creating causal chains. If the story you present is a good one, if it is clear and compelling, then the jury will remember it and give it the credence it deserves. Especially in cases where there are many facts to bring out, a detailed outline serves as a road map for the attorney to follow. Under the pressure of appearing in court, it is surprisingly easy to overlook important facts that must be highlighted during your testimony.
Sitting alone, I always rehearse aloud what I want to say when I testify. This helps me remember the order in which I want to present my findings. More importantly, it allows me to practice explaining, in simple language, the results of my investigation. My goal is to present, explain, and illustrate my findings so that the average 12-year old can understand me. Juries are easily bored by technical jargon and obscure scientific concepts. I strive to be clear and concise, and to allow the natural enthusiasm I have for my area of expertise to show through. People love to learn about new things(though this flame is often extinguished by the time they graduate from high school).One of my favorite film directors, Stanley Kubrick, once said, “To be boring is the worst sin of all.” Our world is alive with facts and ideas, emotions and events. Life is inherently interesting. Appearing as an expert witness should not give someone license to put the jury to sleep.
Extremely valuable is conducting a mock trial. I recently testified as a video forensics expert in one of the most complex cases of my career. We spent two days on a mock trial, with one lawyer doing direct and another cross. Over time, I was able to answer every question clearly and without hesitation, even those questions that challenged my findings and expertise. By the second day, we had arrived at a list of all the questions the prosecutor would be most likely to ask during cross-examination. At trial, the prosecution had only two questions for me, because we had already answered most of his questions on direct examination. Anticipating and pre-empting questions from the opposition is a highly effective legal strategy. Because it was complete and candid, my testimony was largely immune to challenge from the prosecution. A trial consists of many large and small battles, which determine the outcome of the war, the verdict. In that sense, my testimony was an overwhelming victory for our side.