February 10, 2016
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 retained 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.
One attorney has developed a four-step process which provides valuable assistance to attorneys conducting the 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, (4) Explaining the opinion." Id.
The steps discussed herein will help practitioners to get the most out of expert witnesses.
1. Qualifying the Expert
In general, a direct examination which seeks to qualify experts and demonstrates 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, (2) Demonstrating that the expert's "judgment is sound and [their] opinion is correct." Id.
One primary reason for beginning with such original 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." Id.
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. See id. In doing so, litigators turn an otherwise potentially dull witness into a three-dimensional person, one whom the jurors can identify with, trust, and like.
A 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, to make the witness appear more human and appealing to jury members. See id.
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.
Also, "A large component of developing a three-dimensional expert is humanizing [the witness] for the jury." Id. To "humanize" an expert, lawyers might wish to focus on certain things that make the witness attractive 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." Id.
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.
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 judge the credibility of the witness adequately only if they know [their] qualifications.
Having the expert testify to [their] qualifications are 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.
2. Establishing a Basis for an Expert's Opinion
During this phase of preparing for expert witnesses' testimony, attorneys should focus on having them "describe the facts and data that support [their] opinion[s]." Id.
Experts who fail to present the facts that are the basis for their perspectives during direct examination may be asked to do this on cross-examination, which tends to put the control into opposing counsel's hands.
Also, as one legal commentator notes, "it may be more credible for the expert to present these facts at the outset of direct examination."
Making use of the expert's personal knowledge is one method for establishing the basis for an expert's opinion. Although in the past, experts were not permitted to base their points of view on personal information or knowledge, modern jurisprudence is more liberal and allows this type of testimony.
Experts, such as attending physicians, who have personal facts about a case, may be able to maximize their credibility in court by disclosing such details to a jury.
One technique that attorneys can use to establish the basis for an expert's opinion is to ask carefully prepared hypothetical questions. As one attorney explains,
"If used properly, hypothetical questions can be a great tool for establishing facts that are relevant to an expert's testimony." Id.
Especially in cases where expert witnesses do not have personal knowledge of the facts of a case, hypothetical questions can be used by litigators to make important inferences that support the experts' conclusions.
Hypothetical questions also allow an attorney to "control" and choose which facts are presented for an expert's consideration.
Finally, "some attorneys have a great ability to relay a sense of drama and action into the hypothetical question, which builds on the idea explored below, that creating a story is an effective tool to win over the jury."
Another way in which legal practitioners can use direct examination as an opportunity to establish a basis for experts' opinions, which involves asking them what their view is of other witnesses' testimony.
Attorneys can have their experts stay in the courtroom to observe the testimony of other witnesses and then to provide a qualified opinion on such testimony.
In most cases, even where expert witnesses plan to rely on the testimony of other witnesses to give their views on direct examination, the experts are not prohibited from listening to and viewing other testimony. See id.
To magnify the impact of an expert testimony and increase an expert's credibility, attorneys should always review their testimony carefully to make sure that they know what an expert will testify to on direct. See id.
Moreover, by allowing the expert to remain in court during other testimony, litigators will be able to have expert witnesses who can draw from the testimony of other witnesses, thereby ensuring that the direct examination is as successful as possible.
3. Eliciting an Expert's Opinion
This stage of direct examination is one of the most critical, because it is the time when expert witnesses actually testify to their opinions in court.
It is during this phase of the examination that experts will apply their personal "knowledge, skill, training, or education to the facts known or assumed ... [and draw] conclusions or make inferences that are helpful to the jury." Deborah D. Kuchler, "An In-Depth Look at Direct Examination of Expert Witnesses," FDCC Quarterly, Winter 2013.
First, litigators should be aware that for the expert to make the best impression, this stage of direct examination will be the focus of the witness's testimony. See id.
In order to make the most of this stage, counsel must work to make certain that the testimony being elicited falls within "the expert's field of expertise to render opinions on the subject matter."
In addition, before the testimony is actually given, attorneys should thoroughly conduct a direct examine of their experts. They should plan what to discuss during this phase of the testimony.
Such conversations are part of the preparation that will help to smooth out any inconsistencies and ensure that the attorney knows what to expect from an expert as well as which incomplete elements of the testimony, if any, need to be addressed.
These preparatory measures will help provide a "dress rehearsal" to the expert's opinion, which should give the opinion more of an impact when it is time to disclose it in court. Moreover, it will help to make sure that "the expert actually conveys the desired opinion consistent with the theory of the case."
One valuable suggestion for attorneys who are trying to elicit an expert's opinion on direct is not to ask "what happened next?".
Some expert witnesses are very meticulous, and asking "what happened next" may lead such witnesses into a lengthy discussion, one which may make important points. But jurors are likely to miss such points if the response is too detailed, long, or unfocused.
When deciding what questions to ask during this stage of the direct examination, litigators may wish to notice the advice of The Honorable Ralph Fine, who explains that "a direct-examination question should not be asked unless it satisfies at least one of the following rules:
When eliciting an expert's opinion, attorneys must also remember to reiterate important parts of that opinion, as jurors learn by repetition and will place emphasis on the issues that they feel the lawyers and witnesses have emphasized.
As one practitioner argues, "repeating key phrases and facts, [ensures that] no juror should miss the highlights of the argument."
A piece of advice for lawyers is to be consistent in asking questions during this phase of direct examination. The wording of a question influences how a jury perceives the response. See id.
Questions should be framed consistently, because "If the examiner changes the phrasing of questions from how they were rehearsed, the expert might be taken aback and ask for clarification and might give an unexpected answer." Id.
Moreover, consistent wording helps the jurors to receive and process predictable and precise responses from the expert, and such clarity improves the strength of the expert's opinion.
4. Explaining an Expert's Opinion
Although it is not mandatory for experts to explain their opinions, this step of direct examination is a vital one that should not be overlooked.
One technique for making sure an explanation is understood is to turn "the courtroom into a classroom." Id.
In this vein, attorneys may wish to have their experts leave the stand and go to an easel, where the witnesses will write down or draw certain concepts to supplement an oral explanation. See id.
Experts can also use facial expressions and body language to engage the jurors and further make their points, which will give the effect of directly speaking to a jury in conversational form. See id.
To further the effect of this technique, litigators should take time to turn around and face the jury, making eye contact with jurors when asking a question, and then turning back to the witness when the answer is given. See id.
The expert should also make eye contact with the jurors, particularly when the attorney and expert wish to make or underscore an important point.
Story-telling is another way to help explain an expert's opinion. As one professor explained to the American Bar Association, "the point of calling an expert is to put a teacher [on] the stand – an explainer who brings another set of eyes in the room through which the judge and jury can see the facts and understand [the] case." Jim McElhaney, "Put Simply, Make Your Experts Teach: Expert Witnesses Are Most Effective When They Tell the Story of Your Case," American Bar Association Journal, May 2008.
Experts who can easily take on the role of "teachers" and help jurors navigate through their testimony are invaluable and will greatly facilitate the explanation of their opinions.
Also, have the expert repeat the attorney's theory of the case. See Kuchler, supra.
As one legal practitioner notes, "By reiterating this story through a different voice, the expert's testimony, the story may reach a fact finder that the attorney was unable to reach." Id.
Lastly, make use of particular vocabulary to help explain the expert's opinion.
For example, when asking an expert questions, the use of certain words, such as "teach, tell, explain, help us understand, help us learn, educate us about, demonstrate, interpret, untangle, or decipher" can help make a story come alive and help jurors to understand the story. See id.
In addition to making careful use of such words, attorneys should avoid certain language.
The following words are often considered off-putting or are not as accessible to jurors: "indicate, elucidate, illuminate, explicate, expound, discern, enlarge upon, or assist us in comprehending." See id.
The four-part process for qualifying an expert is one that requires preparation and thorough research on the part of the attorney, but it pays off in dividends.
Ultimately, by following the four steps described above will translate into more victories in the courtroom.