home home Staff Contact
Forensic Protection - Services Forensic Protection - Rates Forensic Protection - FP_System Forensic Protection - Feedback

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 and 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 understand 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 strategy. 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 trial.

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 gear.

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.

The expert 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.

Recommended continued reading

Copyright © Forensic Protection
QuickLinks | Main page | Case study | Media | FAQs | Contact us