February 07, 2013
It’s an important distinction to master: whether the testimony of the expert witness goes to a credibility determination to be made by the trier of fact or whether the testimony of the expert witness may be inadmissible as per a ruling from the bench.
Trial attorneys tend to be well prepared. Trial is a serious matter, generally conducted with advance notice. And a combination of factors, including the attorney’s own reputation, generally creates a suitable level of advance preparation. The corollary of this observation tends to be that the witness offered as an expert gets qualified and the testimony elicited on direct examination tends to get admitted. So let’s consider what it means when a judge overrules an objection from opposing counsel on admissibility with the flourish that it “goes to the credibility of the witness” or it “goes to the weight of the testimony.”
First, when a judge rules with the language of “credibility,” he sends a signal to lawyers and jurors alike that the attack upon the testimony may lie in a different direction than the objection. If you are the attorney objecting, it’s where to make a star in your notes, to come back to that point with the credentials, preparation, and foundation testimony of the expert witness in hand. If you are the presenting attorney, it’s the clue that you might need to back up, adding to the foundation credentials, emphasizing the preparation during the pendency of the case, and spelling out in better detail the questions and answers leading up to the objection.
By contrast, when a judge rules with the language of “weight,” the reaction of the trial lawyers is, by definition, slower. The impression the ruling creates is that the statement was not of sufficient weight to be fussed over. If you are the presenting attorney and you believe the point is important, you have some immediate decisions to make on how to elevate the testimony to one that will command more weight in the minds of the decision-maker. If you are opposing counsel, you might do well to leave the testimony alone, unless you believe drawing more attention to it can nix its value on other grounds.
Often in the courtroom, objections and rulings move at a rapid clip. When planning the testimony of the expert witness, in particular, it’s a good idea to think through not only the objections you might hear to certain aspects of the testimony, but, also, the types of remarks that can be made by the judge in ruling on the objections. Being prepared for rulings that equate to editorials will give you an edge in your very next spoken line, whether you lose or “win” the objection.