Antitrust attorneys
Introduction

Part I of this series discussed the different kind of witnesses who can testify in court and more importantly, and how to anticipate opposing counsel’s objections and best prepare.

Part II noted mechanisms attorneys can avail themselves of, to most-successfully train their expert witnesses before a case goes to trial.

This Part involves strategies that attorneys should be aware of, based upon empirical and sociological data, to help coach their witnesses and make their experts’ testimony appear to be as qualified and outstanding as the experts truly are.

Background

After countless studies over the past several decades concerning everything from how an expert witness’s body language may impact a jury to ways to prepare the expert’s testimony have attested, each attorney must create distinct trial strategies with their experts, in order to tip the balance in his or her favor during litigation.2 After working with mock juries, correlating certain psychological elements that resonate with actual juries, and the like, the studies have provided invaluable assistance to the litigator who desires his or her expert to be the “star” witness.  These strategies are offered herein.

What Really Counts: Modification of Expert Testimony: What’s Permitted and what’s Not:

Many highly-qualified individuals and institutions argue that modification of expert witness testimony is the single most important way to prepare for calling that witness during trial.3 However, there is a significant distinction between “preparing an expert witness to be an effective testifier…[versus] preparing an expert witness’s testimony.”4 Attorneys are bound by the rules of ethics guiding the practice of law.  Modification of witness testimony, in an effort to clarify certain points or make a better impression on jurors, by teaching experts to be enthusiastic and concise is completely different than assisting or permitting misleading testimony to go into the record.

As Tess Neal, Fellow in Clinical Forensic Psychology & Research at the University of Massachusetts explains, “it is unethical and illegal for attorneys to prepare a witness to deliver false or misleading testimony5… . The goal of expert witness preparation is to assist the expert in delivering the message he or she has to share in an effective and responsible manner.”6 While it is critical for attorneys to know how to train their expert witnesses to best testify and make the most valuable contribution possible in court, the aim of attorneys must be to guide the expert in expounding on his or her specialized knowledge, rather than suppressing that knowledge in misleading ways.

Strategies: The PTWP Model: In 2004, one scholar developed a model and set of techniques, to prepare experts for courtroom success, regardless of whether or not the expert had testified before.  Just as attorneys who have litigated successfully for years still prepare and practice their courtroom techniques, so must the legal community ensure that retained experts are equally prepared.  It is not the expert’s job to know exactly how to testify in a given case. The critical value expert witnesses bring to the table is their expertise, specific knowledge, and ability to synthesize that knowledge for jurors.  They also provide credibility and support for theories that might otherwise lack backing.  However, an expert is not an attorney.  Attorneys need experts to explain things which they, alone, cannot, and experts need attorneys to guide them in how to be as persuasive as possible in court.

The model created to make the most out of expert testimony in court consisted of eleven components, all of which had been empirically tested and valuations assessed, based upon the reactions of mock and real jurors and judges.  This model, the PTWP, stands for Persuasion Through Witness Preparation, and it has become an invaluable tool for attorneys.7 The eleven components identified in potential witness testimony/behavior, by the PTWP are: (1) poor posture, (2) fidgeting, (3) expressiveness, (4) gaze, (5) voice quality, (6) response quality, (7) contempt, (8) other individual items, (9) general credibility, (10) confidence, and (11) emotion.8

The PTWP hypothesis was then tested on mock juries and resulted in very important things for attorneys to note about their witnesses:  While expert witnesses may be incredibly skillful, intelligent, and the best in their fields, attorneys must still work with these witnesses to enhance witness credibility on the stand.  What does this mean, specifically?

The implication is clear:  Attorneys must teach their experts to be good presenters as well as brilliant minds.  The techniques are stunningly simple to grasp yet difficult, if not practiced rigorously and carefully for trial.  Perhaps the best manner in which to subdivide them would be to classify expert witness demeanor, on the stand, into two categories: Oral/verbal skills, and non-verbal techniques/body language.

(1). Preparing Experts to get the Best Testimony: Verbal Skills & Presentation:

Although many attorneys may believe this is a self-evident strategy, it is too-rarely deployed and, when used, can result in major victories.  Expert witnesses should be prepared regarding what types of verbal communication they will want to incorporate into their testimony.  For example, enthusiasm is very important.  Jurors identify with dynamic people, particularly when a topic may be complex or, on the surface, maybe appear somewhat inaccessible or uninteresting to lay persons.9 Experts who are, indeed, the best in their field but merely recite their expertise are less likely to sway juries than those who make an art of the science by making the material interesting.
Another key for attorneys is to remind and prepare their experts to create an impression of amiability and friendliness.  Particularly in the cross-examination, what attorneys need to remind an expert is that, “no matter how nasty the cross-examination, you are not the one on trial here.”10 Experts should be trained by the attorneys who retain them not to personalize matters, appear hostile in responding to cross-examination, and to always let the jury see the professionals who they really are.  Confidence in testimony is also very important, but verbal testimony by experts should not cross the line between confident and arrogant.  The latter is off-putting at trial and can lead both judges and jurors to give a very-qualified expert less credibility.11 The former, however, makes it more difficult for opposing counsel to ask particularly hostile questions, as a confident and amiable witness may make a particularly aggressive attorney lose face, rather than the other way around.

(2.)  Preparing Experts to Give the Best Testimony: Non-Verbal Communications:

Just as attorneys must prepare their expert witnesses to use friendly, confident, and enthusiastic verbal communication, these aspects must also be reflected in the expert’s non-verbal behavior.  For example, an expert who slouches or makes no eye-contact may appear under-confident or furtive, despite the quality of his or her actual verbal testimony.  Attorneys must help experts to understand that expert “testimony” does not just consist of words, but of body language and facial expressions, as well.  Laurence Miller, a clinical & forensic psychologist who tours the country to train and educate attorneys, explains, “While testifying, look at the attorney while he or she is questioning you, then switch your eye contact to the jury while answering the question; it’s them you have to establish a connection with, and jurors tend to find witnesses more credible when they ‘look straight at us.’ Be neither overly aloof nor overly intense.”12

Attorneys should pay careful attention to the elements listed in the PTWP, as the studies indicate that non-verbal communications during expert testimony are as important as verbal ones.  Jurors tend to want to like and trust experts, because they want to believe that doctors or law enforcement officials, for example, are telling the truth and are genuinely interested in the public good.13 However, if attorneys do not coach their experts to instill that confidence in juries by not fidgeting, keeping a calm demeanor and straight face, etc., neither the experts nor the jurors may be able to control a certain level of cognitive dissonance that may occur and take away from otherwise invaluable testimony.

Conclusion

The legal and expert witness training materials are full of extremely useful, productive advice, for attorneys to employ when placing their experts on the stand.  To gain the very most out of an expert and to make the jury believe that he or she holds the “winning hand,” attorneys need only to follow this advice and will often find that it not only catches opposing counsel off guard but pays dividends.

1 This article is Part III of a series.  It discusses the best ways in which to deploy experts in the courtroom and to prepare them for testifying.

2 See, e.g., S. Lubet, Expert testimony: A guide to expert witnesses and the lawyers who examine them, (National Institute for Trial Advocacy) (1998);P. Stern, Preparing and presenting expert testimony in child abuse litigation: A guide for expert witnesses and attorneys (1997).

3 Tess M.S. Neal, “Expert Witness Preparation: What does the Literature tell us?”, Vol. 21 The Jury Expert No. 2 (Mar. 2009).

4 Id.

5 American Bar Association,§1.2d & § 3.4b (2001).

6 Neal, supra note 3.

7 M.T.Boccaccini, “Impact of witness preparation training on the use of targeted testimony delivery skills, perceived credibility, and evaluations of guilt,” Dissertation Abstracts International: Section B: The Sciences and Engineering, 64(8-B), pp. 4023, (2004).

8 Id.

9 See, e.g., Laurence Miller, “May It Please the Court: Testifying Tips For Expert Witnesses,” DoeReport (2007).

10 Id.

11 See id.

12 Id.

13 See Neal, supra note 3.

By: Kat Hatziavramidis, Attorney at Law