Credentials Tell the Jury Why They Should Trust Your Expert
You can put yourself at an advantage by selecting experts who have very relevant experience and great credentials and whom your audience will find believable and compelling. Remember that the judge and the jury are people. Beyond all the endorsements your expert can have, some credentials are simply valued more because they are approachable and cool. Attorney Dr. Chris Mammen gives an example:
We had an expert, and the other side had a technical expert. They both got up on the stand and told their stories about why they were qualified, and the expert on the other side was a very distinguished professor. He got on the stand and talked about all the many dozens of technical articles that he had written, and published, and how many classes he had taught, and so forth. Our expert got up on the stand. He was also very distinguished, with not quite as many published articles, but he said, “I helped design the communication system for the Space Shuttle.” Wow! Just that made him relatable and made the jury perk up. He had their attention and the greater credibility for the rest of the trial.
Your experts must be fully credentialed on the topics on which they will opine, and they need to stick to those areas in which they have substantive expertise. Kevin Quinley makes this recommendation to experts:
Stay in your swim lane, and by swim lane I mean your subject matter expertise because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors as the credibility for your future engagement, if you venture outside to an area that is external to your core expertise.
Prepare Your Witnesses. . . . Practice Makes Perfect
Your expert’s credibility must withstand scrutiny. Even if your expert has a beautiful résumé illustrating mastery of the topic, your expert can still fold under pressure and blow up your case during deposition or trial. However, with practice, experts gain confidence and can respond with aplomb. Expert Charles Ehrlich notes:
You must prepare for a deposition. You have to insist that your lawyers take you through an adverse deposition. “What were the questions that you guys would ask me if I were the opposing witness?” Otherwise, you are just not preparing yourself for the worst-case situation.
I was thinking of Tom Brady, a famous football player, you might have heard of him. When Tom Brady goes into a game. He does not just read the playbook. He gets in there and they run plays, and they have guys chasing after him, trying to knock him down. That is what a deposition is like sometimes, but it is very hard to get the lawyers to do this. The lawyers will say, “Oh, you have been deposed before. You know what you are saying. Here are the themes that we want to do.” Back in my very early days of practice, we had an expert who was an expert on the issue of water and corrosion of pipes. By the time his deposition was over, he had never heard of pipes, because we had not prepared him for getting beaten up.
Your expert needs to gain and keep the court’s trust. An expert operating outside of the expert’s comfort zone or appearing to favor your side blindly often backfires. Expert Mike Slinn remembers watching another expert fall apart in court:
[I remember one case where there was] a highly credentialed person who was a bit outside their field, but their credentials were truly impressive, and they were just there to act as a mouthpiece for their client. They did not have an original thought and they did not have an opinion because they were not that qualified. […] So, it is easy when you see this happening to present an alternative independently and to be demonstrably transparent. The other guy’s credibility was blown to pieces and that is why I think we had a big advantage there in the deposition. […] He kept on and did not waver. Every rebuttal he would put forward was just a restatement of his opinion without basis, whereas I had a reason, explained how I got there, what the line of reasoning was, and the facts they started from. It was defensible. Nothing he said was defensible.
Attorney Kirk Watkins encourages experts to stay true to themselves during testimony:
I have often found that an expert who does not deliver 100% of the opinions that you want, but delivers the opinions that he does with complete sincerity and answers your opponent’s questions in a straightforward and informative way, even when the answers are not helpful to your case, turns out to be the best kind of witness you can have. He is believed by the jury and as long as, on balance, he’s on your side, that weighs heavily. On the other hand, an expert who is clearly an advocate, who fights with the attorney that is questioning him, will not give a response that is going to be negative to the person that retained him, even though he knows he would have to if he answered the question, that does not turn out well.
You are the client’s advocate. . . . The expert witness is there to neutrally explain an aspect of the matter based on the expert’s experience. Expert Robert Sherwood suggests that you tell experts to trust that you will clear up the inevitable awkwardness that will arise during questioning:
Sometimes an expert gets asked a question on the witness stand under oath. The witness knows what he will reply. He must be truthful, but he is damaging to his client. What should he do? He can trust that his lawyer during cross-examination will clear that up. Experts I have talked to say, “What do I do? I am going to have to say something negative.” I said, “Do not worry about it. What you need to do is answer truthfully. A lawyer will come back to you and ask you to explain it but do not explain it yourself. Then act like, “Oh gosh, I just said something negative about my client. I better clear it up by now by saying something positive.” That is not what an expert should do. One of the first rules […] is you always tell the truth. […] I have learned that focusing on that makes you less nervous. When I go on a witness stand, I do not have to worry about anything. If I know the answer, I answer it. If I do not know, I say “I do not know.” Because I can trust my lawyer to ask me questions. The lawyer’s job is the proponent of the client; the expert is not. I am the proponent of truthfulness, if you will, so be truthful and let your lawyer be the advocate for your client.
Last, attorneys should ask their experts to listen to the court. Sherwood recalls another incident where an expert lost the trust of the jury by not following directions:
I am testifying at a trial, and there was another expert. This other expert, let’s call him Jack, is on the witness stand. His attorney is asking Jack questions. The questions the attorney is asking him are binary-type questions. He wants the witness to say yes or no. This witness is a knowledgeable person who has written a couple of books. He is a professorial, Santa Claus-looking guy. Every time he got a question, he could not stop talking. The judge started admonishing him. He would say, “Jack, just answer the lawyer’s question.” Do not go on like you are having an epiphany or something. He just kept doing it and kept doing it and got admonished maybe four or five times, which caused him to lose all credibility with the jury. […] When you are in a trial, and your lawyer asks you questions, you do not have to guess what he wants. Just answer the questions. He knows what he wants and will get you there.
There is only so much you, as the attorney, can control. However, you can lay the groundwork and prepare your experts so that they enter the courtroom confident in themselves and in you, ready to win over the audience.
