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.

Train Your Expert Witness to Educate

If you are blessed with an expert witness who not only is proficient in his/her area of expertise, but also juror-sympathetic, count yourself among the lucky few, and hit “delete.” If, however, you sometimes find yourself working with an expert who, although proficient in the required expertise, but less than juror-sympathetic, read on.

A common problem is the expert who holds an attitude of “This is so because I, THE expert, say it is so.” Jurors are not convinced by such arrogance, even if it is well-deserved. What does convince jurors is the expert who seeks to educate the jurors, rather than impose his/her opinion. Encourage your experts to present information in a way that guides the jurors through a series of logical steps that results in an inescapable conclusion that just happens to coincide with said expert’s opinion. 

You can help your expert get there by challenging him/her in prep sessions with questions such as: “Why do you hold this opinion? Couldn’t it be X instead?” “Explain it to me as you would to a high school student.” “How did you arrive at this opinion? What’s the logic, step by step?” Remind your expert as often as necessary that their job is not to defend/plead the case – that’s your job. Their job is to educate the jurors to why your interpretation is the one that should prevail. Educating is far more compelling than arguing or fighting with opposing counsel - which is, more often than not, a losing battle. And you’re there to win!

Your Client, Expert, and Witness E-Impressions Matter! Manage Them Well

What is written has more weight than what is said. Always. That is why, when something is important, we write it down. That is why, in any courtroom, jurors will believe documents over witness testimony.

Unfortunately, clients often forget this, if they even ever stopped to think about it in the first place. And the handy “delete” button on our various devices leads one to believe that whatever is written in emails or texts, or posted in the social media doesn’t really exist in the same way a written document does. We now know all too well the inaccuracy of that belief.

Educate your clients, expert and lay witnesses! E-impression is just as important as the impression your client, witness or expert makes on entering the courtroom. You need to know what e-impression already exists, should damage control be required, and emphasize to your clients, experts and witnesses the absolute necessity of being vigilant about their current e-impression.

The same goes for your team. They must manage their e-impression with the same care they manage all other aspects of their practice.

There is nothing evanescent about virtual reality; in a certain sense, it is, or certainly can be, in perpetuity. Poster, beware!