Litigation’s Unsung Hero: Glory to the Direct Examination of the Expert Witness

Selection: The Right Expert for the Job

As a threshold question, you will need to decide whether or not to employ an expert at all. Note that an expert is not an automatic recipe for success or even always a cost-effective tool. Of course, at times, you may need to engage the services of an expert simply to counteract the other side’s experts.

When selecting experts, you must scrutinize not only their qualifications but also their demeanor and relationship to the forum jurisdiction. Sometimes you may find an expert who has the best pedigree but nonetheless is an improper choice due to geography.

Some trial attorneys elect to employ in-house experts because often they are cost-effective and the most familiar with the case, but they also may come with an appearance of bias.

Note that even if you find a suitable expert and spend considerable time and money preparing with that expert, you still may need to muster the courage not to call that witness. From a defense standpoint, you must never give plaintiffs who have presented their case inadequately a second chance through the cross-examination of your retained expert.

Examining qualifications. After narrowing the field of experts, delve into a particular expert’s qualifications and experience. Examine the very basis of the expert’s opinions. Remember that opposing counsel will have the option of challenging your expert witness’s basis and foundation for opinions. At the very least, you must ensure that your expert will survive a Daubert or Frye motion.

Researching testifying history. Learn the history of the expert’s testimony and look at similar cases in which the expert has testified.

Examine how often your expert has testified and for whom. A novice expert witness can come with benefits, but you will have your work cut out for you.

Additionally, look at whether or not the expert is particularly plaintiff- or defendant-oriented. If the expert has testified in similar trials, look at whether the expert took any positions that were contrary to your current stance. Scrutinize the expert’s prior sworn testimony, as well as whether or not the expert has testified before judges in the jurisdiction of your matter, and contact the attorneys who used that expert to find out how he was perceived.

Staying within bounds. Before committing to a particular expert, make certain that he understands not just the science behind his role but the applicable legal standards in the case. Share the general arguments that you will be making and how the expert’s testimony will fit into your overall strategy. If the expert cannot testify truthfully in a manner that fully supports your position, then that is something that you must discover before you get too far into the proceedings. Unlike wine, this will not improve with age. Do not simply ignore the issue and assume that you will be able to get the expert to stretch his words to fit your agenda.

Conversely, make sure that the expert will not say too much. Remember that just because an expert says it is so does not mean it is so.¹ Look at the basis of the expert’s knowledge, and ensure that the expert will stay within the bounds of his knowledge.

Ensuring an effective delivery. Be mindful of any red flags that may pop up when you are interviewing experts, such as whether they are overly subjective, seem to be relying entirely on anecdotal evidence, or simply are unable to reduce complex subjects to easily digestible information. No matter the list of qualifications, experts will be ineffective if they fail to connect with the jury and are unable to explain complex subjects adequately. On the other hand, you do not want an expert who fills the room with so much academic jargon that the explanation is just as confounding as the subject. The perfect expert witness is one whom the jury feels fortunate to have on its case. This kind of expert can lead jurors to believe that they have arrived at precisely the place they would have ended up had they all possessed the requisite expertise and knowledge.

Considering potential impressions. Pay careful attention to not only what the expert has to say but also how he says it. Imagine how this person will be perceived by the jury. Really try to get into the jurors’ shoes and determine whom they would trust. If you do not particularly like your expert, then the jury probably will not, either. The ideal expert is one to whom you would turn if your life depended upon it.

Furthermore, although it may seem superficial, you must pay attention to your experts’ overall appearance and relatability to the area from which your jurors are drawn. Failure to do so may harm your case before the experts can even get into their opinions. Know your audience, and cater to them as much as possible.

Similarly, pay close attention to your experts’ nonverbal communication. Watch for any potentially distracting nervous ticks or unconscious habits that your experts may exhibit. Certain behavior is very distracting not just for jurors but for the judges before whom you are arguing.

Finally, remember that arrogance never plays well with anyone, but particularly not with a jury.

Picking the best teacher. Although it is increasingly difficult and costly to find an expert witness who is not only a master in the subject matter but also charismatic, your case may very well hinge upon the jury’s perception of your expert. Look for an expert who is authoritative but not boring, and friendly but not flippant. Ensure that your expert does not speak too quickly, particularly when the subject matter is dense and technical. In general, experts should be capable of varying their speech and able to discuss highly technical details at about the same speed that an average juror or judge can write.

Doing no harm. In the courtroom, your expert witnesses are a reflection of you, and both your client and the jury will attach an expert’s strengths or weaknesses directly to you. At the very least, employing an ill-prepared or inappropriate expert may call your judgment into question. While you may not be able to find the perfect expert in every situation—and you cannot necessarily make your expert more knowledgeable—take care to select an expert with an image and delivery that suits you and your case.

Preparation, Preparation, Preparation

There is no such thing as too much preparation.

Writing out a detailed script. At the outset, write a detailed script containing all of the expert’s opinions and every question that you will use to elicit those opinions. Although you should try to avoid simply reading from a script while in the courtroom, a good script can be crucial to managing your expert from start to finish. Go over the questions and opinions in your script until both you and your expert are comfortable with the process, and then practice combining it all into a natural dialogue.

Preparing the witness for deposition and direct. Prepare with your experts as much as time and budget allow, starting with a rehearsal of the experts’ deposition. In fact, the very success of your expert witnesses at trial depends upon their deposition. Opposing counsel will attempt to corral your experts by limiting what they are free to say on the stand. Because the experts will be locked into their answers at deposition, it is vital that you prepare the experts with an arsenal of good answers to deposition questions and help the experts avoid traps and pitfalls.

After moving on to the direct, discuss the questions that you will be asking, and tailor them in a way that fits both your case and the experts themselves. If your experts cannot say exactly what you want them to say, then do not try to force it. If your experts have a tendency to say too much, then rein them in. Only by rehearsing repeatedly will certain factors be evident early enough for you to handle them effectively.

Wherever possible, make video recordings of your rehearsals. After you are finished, watch the recordings with your experts and make suggestions as you go. Consider hiring a trial consultant who can watch your experts and give you feedback. Just because an expert is a professional does not mean that he cannot improve. In fact, many experts are surprised at how they come across on the stand. Have your trial consultant pay special attention to how your experts perform under examination, and ask whether or not the consultant actually finds the experts believable.

Harnessing the power of visual aids. Visual aids are invaluable in all forms of testimony but even more so in expert testimony. Play into the fact that for many people, if they can see something, then it must be true. What may take an incredible amount of verbal explanation to describe to a jury may be conveyed readily through a few visual demonstrations.

Get your props and visual aids together, and go over them with your expert. Rehearse until the expert is comfortable with the props and will not be surprised by them at trial.

Flip charts, graphs, and anatomical drawings not only are more interesting for the jury but also will aid in their understanding. Computer demonstrations also can be effective, especially with the increasing influence of internet culture and the corresponding decrease in attention spans. Conversely, sometimes the simplest methods are the most effective, such as sending the expert to a whiteboard with a marker.

Preparing the witness for cross-examination. Finally, remember that a forward-thinking trial attorney can score points with the jury not only by way of direct examination but also through carefully preparing the expert for cross-examination. Where possible and financially feasible, conduct a mock trial with yourself or a colleague acting as a cross-examiner and peppering your expert with likely questions and rebuttals. Identify the weak points of the testimony and the bad evidence in your case, and confront them at the outset. Predict the tough questions that will be posed by opposing counsel, devise appropriate responses, and ensure that your expert is comfortable with them. Additionally, read the expert differing opinions by other experts, and make sure that your expert can adequately defend his stance. At the same time, ensure that the expert remains polite and noncombative with opposing counsel, just as if he were talking to you.

Where applicable, confront the witness with physical props. If your expert will be talking about a piece of machinery, anticipate that opposing counsel may drop that machinery in the expert’s lap and ask him to take it apart. There are few worse feelings than having opposing counsel open with a “gotcha” moment immediately after you have finished a lengthy direct exam. Any credibility that your expert had will evaporate, as will most of the jurors’ memories of your direct.

Anticipate objections and attacks based on bias. Is your testifying witness a professional, highly paid expert? If a negative element is sure to be brought up on cross-examination, proactively addressing it on direct will weaken the other side’s impact. On the other hand, if it is not likely to be brought up, or if it is a negative element to which the other side’s experts also are susceptible, it is often better not to address it on direct.

The Direct Examination

After you have selected your expert carefully, prepared him as much as possible, and conducted your depositions, it is time to focus on the direct examination.

Deciding the where and when. Before trial, determine when it is best to call your expert—too early can confuse the jury unnecessarily, and too late can diminish the value of the expert explanation.

Additionally, the counsel table is so named for a reason. Do not have your expert sit at the table without obtaining prior leave of the court, which generally is best requested directly after the case is called and counsel are introduced.

Enlivening the procedural elements. Qualify your expert witnesses by going through their background, education, and experience. Do not rush this process, and do not stipulate to a highly qualified expert’s qualifications, though you may abbreviate if you are pressured for time. In detailing the expert’s qualifications, you may bring up any noteworthy awards that the expert has received, as well as any other feature that is particular to the case or generally would lead the jurors to believe that they are lucky to have this particular expert in front of them.

Conversely, while your expert often will possess a laundry list of impressive qualifications, take care not to bore the jury when presenting them, and attempt to introduce those qualifications in an interesting manner. For example, instead of simply asking what awards the expert has received, ask about a particular award and ask how many people were considered before he ultimately received it.

Humanizing your experts. Wherever possible, humanize your experts so that the jury can identify with them as much as possible. If jurors feel as if a particular expert has a condescending attitude or is alienating them, then any favorable testimony given by that witness will be tainted. Have the expert tie in local sentiment and use analogies that are common to the region.

Close cases may turn upon the likability of expert witnesses as much as or more than their substantive testimony. Imagine a tired juror, struggling to listen to two eminently qualified experts giving opposing opinions. Invariably, jurors will give greater weight to the expert whom they find more relatable.

Eliciting the testimony. Get the expert witness’s opinions out immediately, even if only in broad strokes, before the jury starts to fade. Once the basic opinions are out, then get into the details.

Along the way, remember that it is not just what the expert says but how the expert says it. In your dialogue with the expert, try to make it look like a casual—but articulate—conversation in which you are asking the questions that the jury would ask if given the choice. The less this process seems canned and recorded, the more genuine it will feel to the jurors and the more they will connect with the expert.

You may use some leading questions for preliminary and undisputed matters; but for most of the examination, you should use open-ended questions and allow your expert the freedom to arrive at his own conclusions. When treating specific, important elements, however, occasionally phrase the question in such a way that the important element is explicitly implicated. In addition, break up the dialogue by guiding the expert through some discrete topics by way of short, pointed questions, and do not merely call upon the expert to engage in an endless monologue for which the jury never actually will stay focused. This not only will help keep the expert on track but also will indicate to the jury which points are most important.

Remember that if you do not understand something, then the jury most likely will not understand it, either. Ask clarifying questions where necessary, and keep most of the questions simple. Long, compound questions should be avoided because they cause the jury to forget a question before it is even answered.

Narrowing the focus of the jury. In general, allow your expert to do most of the talking, and focus the jury entirely upon the expert. The ideal situation is one in which the expert testifies and the questions disappear. Consider keeping some distance between yourself and the expert, such as by standing at the end of the jury box. In this way, the expert will be looking toward the jury even while addressing you.

Help the expert along with some back-and-forth exchanges, and break up the monotony by way of your props and visual aids. Ultimately, the expert is not there to tell the jury how to decide the case but simply to educate the jury well enough to carry out its function as fact finder.

Keeping the interest of the jury. Because this is a direct examination, you will not be going on the attack, but that does not mean that the exercise must put the jury to sleep. Vary your language and rhythm, and have the expert do the same. Emphasize the key points in different ways, and use interesting analogies and hypothetical situations. Hypotheticals are particularly useful because they allow you to control the testimony and frame the questions in the context of your particular theory of the case. Use buzzwords, and understand that your jury likely still will fade in and out throughout the proceedings. Think back to your favorite professors who had a way of making even dry material seem interesting, and strive to help your expert do the same.

Staying on track and on point. As you have already formulated a plan and gone over it with your expert ahead of time, stay close to your rehearsals during examination so as not to surprise or throw off your expert.

Pay close attention to the expert’s answers to your questions, and attempt to appear interested in those answers even if you have rehearsed them repeatedly and know them very well. In addition, listen closely and adjust your questions where necessary because an expert will sometimes give a new and unexpected answer, and inattentive attorneys will continue onto their next question based upon the answer they were expecting. It is good to have a general outline, but an expert examination is often less of a concerto and more of a jazz session.

As you strive to stay on track and on point, make sure that your expert witnesses are not seen as testifying for one side or the other. Experts should appear to be simply applying their experience to the circumstances to render the most scientifically reasonable conclusion. Many jurors already feel that experts are “hired guns” or mere mouthpieces of counsel, and effective trial attorneys must take care to manage that preconception.

Leaving the jargon at the door. A common mistake made by trial attorneys and experts alike is to use technical terms and jargon in an effort to impress the room, and this can lose your jury entirely.

Elicit the expert testimony in plain language. While you may have had the benefit of living and breathing the case for months or years, the jury is encountering it for the first time. Have your expert explain concepts as if he were addressing a middle or high school class; make sure that your expert does not get bogged down in technical minutiae.

It is not necessary to excise all instances of jargon and scientific terminology from the expert’s lexicon; but, to the extent that the witness does use heavy jargon, do not merely adopt that jargon in your subsequent questions. Clarify words, and ask the expert to rephrase important elements in more accessible language. Avoid acronyms generally, and explain the acronyms that you or the expert does use. In the face of technical jargon during an expert’s testimony, stay focused on the main points that you really want to convey. Repeat those main points, and narrow the attention of the jurors on those elements.

Analogizing, hypothesizing, and summarizing. Throughout the examination, you should imagine the picture that you want in the minds of the jurors, and then have the expert explain ideas to them in such a way that it paints that picture.

One great method of achieving this is by constructing trenchant hypotheticals and questions to which the expert can respond with concrete examples and everyday analogies. For instance, the inner workings of a cell may be analogized to a restaurant, or a cardiovascular system to indoor plumbing, or a complex financial structure to a football team or whatever is the most popular sport in the area in which you are litigating. Einstein often used practical analogies to explain his theories, and such methods are equally suitable for the courtroom. Imagery of this sort remains in the minds of the jury even after the jargon has faded away.

Once you have concluded the examination, remember to get a summary of the testimony. You already will have repeated the key facts several times with the witness, but reinforcing them in summary is pivotal, especially if the examination itself has been long and complex. Ask a series of short, simple questions that restate the witness’s conclusions in plain language, and tie them into your overarching theory of the case. This will leave the jury with some firm mental images that best support your position.

Glory to the Direct Examination

Although cross-examination may enjoy the most courtroom drama and glory, the direct examination of an expert can be the single most important aspect of an entire trial. Take care in selecting experts, and then rehearse with them, paying close attention to their overall presentation. Let an expert teach the room like a practiced professor while emphasizing your key elements. Accomplish all of this without overly boring the jury, and you are well on your way to a favorable verdict. The direct examination of an expert witness may not get its fair share of the glory, but it does that which your clients most desire and expect: it wins cases.

Bibliography

Bernstein, Mark I. “Jury Evaluation of Expert Testimony Under the Federal Rules.” Drexel Law Review 7 (2014–2015): 239–307.

Krafka, C., M. A. Dunn, M. T. Johnson, J. S. Cecil, and D. Miletich. “Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials.” Psychology, Public Policy, and Law 8, no. 3 (2002): 309–32.

Kryworuk, P., and Tyler Kaczmarczyk. Effective Use of Experts, Litigating the Medical Malpractice Claim. Toronto: Ontario Bar Association, 2013.

Kuchler, Deborah D. “An In-Depth Look at Direct Examination of Expert Witnesses.” FDCC Quarterly 60, no. 2 (2010): 151–70.

Matson, J. V., Suhu F. Daou, and Jeffry G. Soper. Effective Expert Witnessing: Practices for the 21st Century. 4th ed. Boca Raton: CRC Press, 2004.

Prager, I., and Kevin S. Marshall. “Examination of Prior Expert Qualification and/or Disqualification (Questionable Questions Under the Rules of Evidence).” The Review of Litigation 24, no. 3 (2005): 559–80.

Sapir, Gil I. “Qualifying the Expert Witness: A Practical Voir Dire.” Forensic Magazine (February/March 2007): 1–8.

Notes

1. Viterbo v. Dow Chem. Co., 826 F. 2d 420 (5th Cir. 1987).