Don’t Let Your Expert be Goaded into Defensiveness

There’s a world of difference between assertive expert testimony and defensive expert testimony, where your expert is essentially arguing with opposing counsel.

Now, your expert may believe he or she has every good reason to argue with opposing counsel, as in, opposing counsel is dead wrong. But arguing with opposing counsel is never a wise strategy, and often a road to discrediting your expert.     

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Key words – a mantra, if you will. Your expert’s job is to clarify and educate. Period.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the tests you used is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a clarifying and educating response might be (in a calm, neutral tone): "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracks opposing counsel (who was undoubtedly expecting the defensive response).

Helping your expert to see his/her way to clarifying and educating – rather than allowing themselves to be goaded into defensive responses –  inevitably paves the way to a more credible, juror-sympathetic response.

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I recently had the opportunity to write an article for California Litigation. "Out With The Old, In With The New—Try An Updated Approach To Jury Selection" appeared in the latest issue. Click here to view.