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