As an expert witness, you must be prepared to testify.
Testimony is far more involved than
reciting facts and opinions. The expert's skills are being employed as a trier of fact, and the OC (opposing counsel)
has a duty to discredit the expert and their findings, or at least diminish their
influence with the jury.
What the expert does next will either fortify or destroy their career.
Expert testimony starts taking shape during the first communicate
with the hiring attorney. This is when the expert explores the case needs and
defines their role within the narrative. This is also when the expert can either disclose
when a requested opinion would be beyond their expertise, or they
can produce unqualified opinions that the OC can use to destroy
that expert's credibility during
the public record of courtroom testimony. Such lapses can forever haunt
an expert's career, as the public record details how they were
disqualified or sanctioned by the court. Several prestigious forensic
careers have been forced into early retirement because the expert lost
their professional discipline and focus.
Once the expert's opinions have been submitted into the court record,
they will likely be
deposed. This is the OC's opportunity to explore the scope of those
opinions, and to identify potential vulnerabilities. The OC will
scrutinize the data and methodology used by the expert, their opinions
qualifications to form such opinions, and anything that is contradicted
by case facts or the expert's prior court testimony.
Depositions are performed under oath and become part of the court
record. Any opinions provided during deposition that contradict the expert's
prior statements, can be used to
disqualify, discredit or impeach that expert. This realization can be
extremely intimidating to experts who are new to testifying, and the
skilled OC will fully exploit that fear. For this reason, those new to
testifying should let their hiring attorney explain the trial process, help
to develop an answering strategy, and discuss supportive charts or diagrams
intended for use during the trial.
Experts should reschedule their deposition If either the
transcriptionist or hiring attorney are unavailable. This is because the
hiring attorney cannot defend your testimony, if your words or the
attorney's objections are absent from the official record. The expert
should also try to get paid upfront, since it is inappropriate to
contact the OC for payment, and the OC has minimal motivation to pay you
for testimony intended to disrupt their narrative.
During deposition, the expert should keep all responses brief, and treat
all questioners with respect. While the expert must answer deposition questions
truthfully, it is
not their responsibility to help the
OC ask the right questions. The deposing attorney may not fully
the expert's field, and thus lack the ability to ask pertinent
questions. The expert is only required to provide enough details to
ensure that their opinions are on record, and a more expansive
explanation can wait until the trial.
Experts should think about the focus of the OC's questions, as it exposes the trial
Sometimes the OC will use targeted
questions developed by an equally qualified rebuttal expert. In larger
trials, the hiring attorney may arrange for a mock deposition or trial to minimize the chance of courtroom surprises.
Some attorneys wait until an expert struggles with a question, and will then
use awkward silence to encourage them to uncontrollably
blurt out additional information. Expert's should use moments of silence to collect
their thoughts, and never
volunteer information that was not solicited, unless they have a critical
opinion that must be stated into the record. Remember that, any opinions
omitted during deposition may be excluded during
During deposition, the hiring attorney may insert objections into
the record. Near the completion of deposition, the hiring attorney may
need to ask a their own questions to clarify the record. Experts can rate
their performance based upon the quantity of clarifying questions
required, and feel pride when no such questions are required.
At the completion of the deposition, the expert should request a copy of
the transcript, which will arrive a few weeks later. Transcript
review is useful to catch substantive errors, including those made by an
inaccurate transcriptionist. It also provides an opportunity for the
expert to review their testimony at a more relaxed time. Unless the case settles, or the expert's opinions are stipulated,
the next stage is courtroom testimony and this is when strategy goes into high
For example, I had a case where OC waiting until after I gave my
opinions and then said, "Are you aware that your prior
testimony is public record and can be used to contradict your opinions
today? Would you like to revise your opinions today?" She did not have
anything contradictory, but this tactic was a clever attempt to
unsettle me into making new contradictory statements. Had it
worked, the jury would have lost confidence in my opinions and the court might
have stricken my testimony from the record. Fortunately, my testimony
has been consistent and within my expertise, so her question only served to amuse me.
During trial, the expert should dress like
they are going to a professional job interview, but consider
adding some symbol of their profession for the benefit of the jury. For example, a
forensic analyst might wear their lab coat or ID badge.
Remain relaxed and confident. Body language should be open (e.g. no crossed arms, clenched fists or angry facial expressions).
The OC may present a document during cross in order to invade the
expert's personal space. If timed correctly this can make the expert anxious, which the jury
could perceive as a lack of confidence. The expert should remain relaxed and, when
opinion are soundly based, own them with conviction. The goal is to help the
jury's perception of credibility as they weigh the expert's testimony.
is rarely allowed to provide any new opinions, but they are generally allowed
to provide demonstrative exhibits and expand upon the opinions
previously provided in their evidence and deposition. The expert should face the
asking attorney for all brief responses. For longer responses, the expert should
turn toward the jury and include relatable terms and simple examples.
For each question, pause briefly to allow the attorney time to object, and then await the
judge's ruling before providing your answer. This will prevent
you from stating potentially damaging or unnecessary information.
Experts should limit their answers to the questions being asked, while
also correcting questions that contain false facts. For example, if an
accident reconstructionist is asked "How fast was the driver
traveling when he tried to injure my client?", they are unlikely to
know anything about motives, and should respond as such. The questioner
will then be rephrased to more appropriate wording.
If a question from the OC requires a response like "yes,
but..." or "no, but...", then the response will likely be
interrupted prior to being fully answered. To prevent this, give the
detailed response first, or state that "the question cannot be
accurately answered with a simple yes or no response". Otherwise,
the expert must hope that the hiring attorney
will address this issue during their redirect. Answers should be kept
brief when possible, as a long-winded answer gives the OC a chance to embarrass
the expert by saying, "Was that a yes?"
Expert opinions should avoid absolutes like "always" and "never" if they are 100% accurate,
else they will regret those words during cross examination. Expert
responses should avoid memorized buzz words or phrases, because sounding scripted will harm
their perceived credibility with the jury. The expert should also avoid
complicated or technical responses, unless those are the only
way to convey case facts. The goal is to engage and educate the jury, not
bore or frustrate them. This can be especially challenging for experts
with large egos and a love of their own voice.
Regardless of their personal feelings on a case, the expert must remember that
they are neither the case hero nor the
client's advocate. They must remain professionally impartial, regardless
of any personal feelings, and only advocate for the facts. The courtroom
is not the place to become emotional or defensive, nor is it the place
to speculate on any topic. If the expert does not recall a specific
detail, they should respond with, "I don't recall".
If you are looking to become an expert, then you will need to create a CV, which
denotes why you are qualified as an expert and includes your relevant
history. This is different from a Resume which lists your total work
history and compensation.
If you wish to promote your expertise, consider public speaking at
groups containing your target clients. You can also promote your
business using an agency, which handles client acquisitions, billing, etc...and
then add a 20% to 50% markup to cover their expenses and profit. Unlike directory
services, agencies do not require you to pay for inclusion. However, you
go about your career as an expert, I wish you great success.