When attorneys retain an expert witness, many factors must be considered to ensure that the expert’s abilities are maximized before a court. The direct examination of friendly experts provides lawyers with a critical opportunity to make their experts’ qualifications clear to a jury. This article discusses some techniques that practitioners may wish to use during direct examination to make the most of their expert witnesses.
According to one appellate court judge, the object of direct examination of an expert is to “use the witness to validate the points you need to make on direct-examination, ‘starting far enough back in the logical train so that either (1) the jury knows the answer before the witness responds; or (2) the answer rings true to the jury.’” Deborah D. Kuchler, “An In-Depth Look at Direct Examination of Expert Witnesses,” FDCC Quarterly, Winter 2013 (citing The Honorable Ralph A. Fine, The How-To-Win Trial Manual, (Juris 3d rev. ed. 2005)).
One attorney has developed a four-step process which provides valuable assistance to attorneys conducting direct examination of expert witnesses. The process consists of: “(1) qualifying the expert; (2) establishing a basis for [the expert’s] opinion; (3) eliciting the opinion; and (4) explaining the opinion.” Id. The steps discussed herein will help practitioners to get the most out of friendly experts.
(1). Qualifying the Expert: In general, direct examination which seeks to qualify experts and demonstrate their credibility to a judge or jury should focus on two goals: (1) showing the judge that a particular expert has “at least the minimum qualifications to” provide opinion testimony on a given matter, and (2) demonstrating that the expert’s “judgment is sound and [their] opinion is correct.” Id. To that end, the introductory phase of the expert’s testimony (and the questions asked on direct examination) should either “foreshadow an argument that is consistent with a theory of the case or make the witness someone with whom a jury can identify.” Id. (citing Fine, at 274). One major reason for beginning with such introductory questions and answers is to make the jury believe that the witness has the necessary “education, skill, [and/or] training to qualify as an expert”. In addition, during the first phase of direct examination, attorneys should seek to highlight an expert’s practical experience, in addition to the witness’s formal qualifications. In so doing, litigators turn an otherwise potentially dull witness into a three-dimensional person, one whom the jurors can identify with, trust, and like. One way of making an expert “come alive” for the jury is to advise the witness to avoid overly technical language, which can be confusing or alienating to lay members of a jury. Another technique is to ask the expert certain personal questions, such as what the witness’s hobbies are, in order to make the witness appear more human and appealing to jury members. As one practitioner explains, “the jury’s ability to understand that an expert engages in far more than just a daily business routine increases the chance that an expert will be viewed as a three-dimensional person the jury will relate to and trust.” Id.
In addition, “[a] large component of developing a three-dimensional expert is humanizing [the witness] for the jury.” Id. In order to “humanize” an expert, lawyers might wish to focus on certain things that make the witness interesting or that the witness has in common with the jury. For example, an expert who is an oceanographer might be encouraged to “tell several Jacques Cousteau-like stories about descending to the sea floor in a submarine”. Emphasizing an expert’s local connections may be extremely useful as well, and can assist in building a connection with the jury. As one author notes, “Being ‘local’. . . could also carry weight with a jury. A Mississippi jury will likely give the testimony of a local doctor from Ole Miss greater weight than the testimony of a doctor from Harvard.” Id. Attorneys should take all of these factors into account and build upon as many of them as possible with each expert they plan to use in court.
One thing that litigators may encounter from opposing counsel is an offer to stipulate to an expert’s qualifications, often subject to the right to cross-examine the expert on their qualifications. In general, it is best not to accept the offer to stipulate, as that will prevent the juror from hearing and judging the expert’s qualifications themselves. If an offer to stipulate is made, practitioners may decline such an offer by advising the judge that “the jury will be able to adequately judge the credibility of the
witness only if they know [their] qualifications. Having the expert testify to [their] qualifications
is especially important when counsel anticipates arguing to the jury that its expert is better
qualified than the opponent’s.” Id. In this way, attorneys can make the most out of the contact their experts have with the jury and provide a comparative, comprehensive picture that is favorable to their side of the case
The four-part process for direct examination of an expert is one that requires preparation and thorough research on the part of the attorney, but it pays off in dividends. This article reviewed the first part, that of qualifying the expert. Future articles will deal with the remaining techniques in depth and will offer tips to benefit both attorneys and the experts who testify for them in court.
By: Kat S. Hatziavramidis, Attorney-at-Law