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January 27, 2014 Articles

Expert Testimony Part II: Presenting Expert Opinions in Narrative Form

Tips and lessons learned on how to present direct testimony of experts in narrative form in lieu of direct examination.

By Betsy P. Collins

Would it surprise you if a federal court would not allow you to conduct a direct examination of your duly qualified expert witness? If you are familiar with the practice of introducing expert opinions in written narrative that is read into evidence by the expert in lieu of direct examination, my ignorance of the practice might surprise you. However, as I learned when I encountered this procedure last year for the first time in my 28-year career, few lawyers know much about the mechanics—let alone the art—of presenting an expert opinion through written narrative. You might find the lessons this greenhorn learned helpful for use not just with the narrative procedure but also perhaps with the more traditional procedure.

Federal judges have great discretion and inherent power to conduct trials and pre-litigation in such a way as to facilitate the just, speedy, and inexpensive disposition of the action. For example, Rule 611 of the Federal Rules of Evidence gives trial courts the authority to use reasonable control over the mode of examining witnesses and presenting evidence, and Rule 16(c)(2)(D) of the Federal Rules of Civil Procedure allows trial courts to limit the use of expert testimony. Pursuant to these rules, some federal courts limit the use of expert witnesses by mandating that the direct examination of the expert be in written narrative form. I ran headlong into this practice in a case that went to trial last year.

When you first encounter this procedure, you might have the same kind of reaction I had, which is that of a calf looking at a new gate. I was outside my regular jurisdiction, and my local counsel had no experience with this practice. I badly needed practical help. In retrospect, I realize that I mistakenly viewed the procedure as something to endure when, in actuality, it can be used very effectively.

Consistent with standard federal practice, both parties filed their expert reports pursuant to Rule 26 of the Federal Rules of Civil Procedure. We subsequently deposed each other’s experts. After the expert depositions, we filed for summary judgment on behalf of our client. Opposing counsel responded to our motion by submitting their experts’ reports to counter the motion. They did not introduce or even cite the deposition testimony of their experts; instead, they relied entirely on the reports themselves. In response, we argued that the expert reports were not admissible, and we vehemently challenged the reliability of the expert opinions at issue. The court agreed with us that the expert reports themselves were not admissible. The court excluded the expert reports but nevertheless found that a narrow fact issue precluded summary judgment. Yet, based on the criticisms that we lodged in the reply brief, the court noted its own concerns regarding the reports and entered a special Daubert schedule for the experts. See Smith v. Prudential Ins. Co. of Am., 864 F. Supp. 2d 654 (M.D. Tenn. 2012). Under the local rules in that district, the direct testimony of the expert ordinarily was to be reduced to written narrative form and provided to the other side seven days prior to trial. At that time, objections would be lodged and decided prior to trial. Because of the special Daubert schedule in our case, we engaged in this process of narrating expert reports several months before trial. As a result of the Daubert challenge, one of the other side’s experts was excluded altogether, and certain opinions of the others were excluded as well, but five experts ultimately testified at trial.

Upon reflection after the trial, I memorialized the following observations in the event it might help others when they encounter this rather unique procedural practice.

1. I would begin by setting out my expert’s trial narrative at the point in time when I have to provide my first written expert-disclosure report. In other words, I would try to draft the original disclosure to be as close as possible to what I would want to present as the direct narrative at trial. My reasoning is: (1) It’s federal court—there is no room for trial by ambush anyway, especially not with this procedure, so there’s nothing to lose; and (2) it would save the client money—both the attorney and the expert have to be intimately involved in drafting the disclosure as well as the narrative, so you might as well kill two birds with one stone by writing one good document. (Note: In my experience, I found this narrative procedure to be fairly time-consuming and not just because it was new to me.) If you get the hard work done up front, it helps crystalize what you need to elicit from your expert for proof at trial, and you always can refine the trial narrative as you get closer to trial. For example, you can flesh out the ultimate narrative testimony using the expert’s deposition transcript before your pretrial deadline for submitting your narrative, but at least you will have a head start if the narrative is scripted in the beginning. This would be particularly helpful in the ordinary case where you prepare the narrative only a few weeks or even days before trial, as the local procedure usually entails.

2. I would use this opportunity to have the expert “write a better bedtime story.” I was resistant to this narrative testimony procedure ahead of time—indeed, I was downright critical of it—but in the end I appreciated its usefulness. I might even eat some crow here and say I sort of prefer it after having experienced it; I even tried a case with experts this summer and found myself yearning for it! The truth is that direct testimony is often stilted anyway. Putting the opinions in narrative form can make it easier for the jury to understand and easier for you to present the opinions in an orderly and methodical way for the jury. It is also an opportunity to present your expert’s opinions in “plain English” for the lay person, without the hyper-technical scientific language that may be more difficult for the jury to understand.

3. I would make the expert rehearse the narrative like a theatrical production. A bad reader can make even the best bedtime story bad. Part of the storytelling must involve teaching your expert how to read a bedtime story to a six-year-old. At trial, I learned that the process was not as inflexible as I imagined. The expert was not as wed to the literal words of the written narrative as I had believed he would be. There was, however, a limit to how much the judge would allow the expert to stray from the script. Accordingly, for most of the narrative, the expert was reading. I had three experts, each with very different deliveries, and I would compare them to the three bowls of porridge Goldilocks encountered—only one was just right. That expert had practiced reading the report aloud several times, and I think that made the difference, which leads me to my next point. When writing the narrative, read it aloud to determine its rhythm. Dust off your literary skills and incorporate literary devices a poet might use: alliteration, rhyming, and rhythm. While I am not suggesting that you be too cute, just think how easy it was to remember Mohammad Ali’s little quip, “Float like a butterfly, sting like a bee,” or Johnny Cochran’s mantra, “If it doesn’t fit, you must acquit.” You want the jury to pay attention, and most importantly you want the jurors to remember. Many experts do not seem to have an innate talent for simplification and delivery, so this unusual procedure offers a valuable tool that can be used to make expert testimony understandable and memorable.

4. Your opponent will have your expert’s exact testimony ahead of time. This provides your opponent the distinct advantage of being able to prepare a definitive cross-examination. Accordingly, it is a good idea for your expert’s narrative to head off issues where you know he or she is vulnerable; it is better for the jury to hear it from the expert than for the issue to come out on cross-examination for the first time. Further, if an issue is in the narrative, the other side may not even address it on cross. I find that even professional witnesses will sometimes forget a well-planned, scripted rebuttal to an anticipated cross-examination question during the heat of battle. If you incorporate it into the narrative for direct, you control how it’s worded and can effectively downplay it. Moreover, if you bury the issue effectively enough in the narrative, it may also prove to be forgettable. In addition, you might consider dealing with obvious areas of weakness in the original expert’s report. If you have identified your expert’s weaknesses in the report, opposing counsel likely will focus on these weaknesses at the deposition. Accordingly, you can use the deposition transcript to help draft your ultimate narrative, thereby taking some of the sting out of weaknesses in your expert’s opinions. The obvious risk here is, of course, that you may reveal something your opponent might otherwise miss.

5. In light of the other side’s ability to prepare in advance for your expert’s exact testimony, there is an increased need to prepare your expert for cross-examination. This is particularly true if opposing counsel is not the type to expose his or her ammunition during deposition. As we all are aware, experts can be a little cocky. Beware the over-confident expert who thinks he or she knows all. This is the hallmark of an unteachable individual, and it heralds potential problems such as a tendency to lose one’s cool during cross-examination. Even some of my favorite experts think they have nothing new to learn about cross-examination. Because the narrative format is the ultimate road map for opposing counsel, meticulously preparing your expert for cross-examination is crucial. Moreover, this harkens back to my advice about dealing with the weakness in the narrative. Usually, by identifying the expert’s weaknesses up front and under your own terms, you will limit the length of cross-examination. This may have to do with the dynamic nature of trial. With the more common direct-testimony procedure, the cross-examining lawyer does not know your expert’s testimony word for word. As a result, the cross-examining lawyer has a prepared outline but is also furiously taking notes during the direct, which inevitably leads to more questions. Conversely, with the narrative testimony, opposing counsel already knows the expert’s testimony; thus, the cross-examination is relatively straightforward and fully prepared in advance.

6. Use more exhibits and demonstratives. We struggled with how to use demonstratives and exhibits with this narrative-style expert testimony. We could not figure out how to script describing or explaining exhibits or evidence; it always seemed too stilted and unnatural. At trial I realized that our judge would allow the expert to put an exhibit up and explain it off script. The five testifying experts had varying levels of success with this process. In fact, the best was a forensic accountant. It is possible that his teaching experience lent itself well to explaining, comparing, and contrasting such items as spreadsheets and financial statements. Although a few times he went far enough off script to be called down by the judge, I believe that the court was reluctant to stop his testimony because the jury was captivated by his style of presentation. Again, this is an area that requires some practice. Also, because each judge has his or her own views about the narrative procedure, you should address at the pretrial conference whether the court will allow the expert to go off script when discussing exhibits.

Upon reflection, I believe that the narrative form for expert testimony is a civilized way of presenting expert opinions to a jury. Moreover, there are some valuable lessons to be learned from the experience with the alternative narrative method. The main lesson is the effectiveness of the “bedtime story.” Instead of just checking off the “to do” list when providing expert disclosures, it is important to take the time to figure out how to tell the story with the expert’s assistance. As always, take into account the rules of evidence and case law in advance. Sometimes we older (“more experienced”) lawyers let associates and experts draft these disclosures by themselves. Yet, associates and experts do not have enough trial experience or legal knowledge to understand how to properly address the weaknesses. Thus, the more senior trial lawyers must make sure that they are actively involved from the beginning of the process, especially when the expert will testify through this narrative approach. Greater attention to detail earlier will make the path much smoother later.


Keywords: litigation, pretrial practice, discovery, expert testimony, narrative form, direct examination, cross-examination


Betsy P. Collins is a partner with Burr & Forman, LLP, in Mobile, Alabama.

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