The Litigation Consulting Report

7 Smart Ways for Expert Witnesses to Give Better Testimony

Posted by Ken Lopez on Thu, Dec 22, 2011 @ 02:33 PM


expert witness graphics demonstrative evidenceExpert witnesses can be an extremely valuable portion of your case. If they are well-prepared, convincing and convey a clear, uncomplicated message to the jury, their testimony can lead directly to a verdict in your favor. If they are unconvincing and don’t communicate well, they are at best useless and at worst damaging to the case.

The essential problem is that expert witnesses – whether they are testifying on engineering, scientific, financial, or other issues – tend to be very intelligent and knowledgeable. At the same time, however, they are prone to using terms that are well above the jury’s experience and educational levels and thus these experts are prone to be dismissed by some jurors as ivory-tower types who have nothing useful to say.

We believe our firm plays several important roles helping expert witnesses get prepped for trial. Since our goal is winning by telling a clear and convincing story, the value of expert testimony must be maximized in each case.  Expert witnesses are an essential piece of the litigation persuasion puzzle.

Here are our seven tips for preparing expert witnesses and expert testimony to the best effect possible:

  1. USE VISUAL COMMUNICATIONS TOOLS: Use litigation graphics as demonstrative evidence to help the expert explain his or her opinion. No testimony, however favorable to your cause, is helpful if jurors don’t understand it. Don’t simply rely on whatever Excel charts or graphics the expert may have included in his or her report. Those are designed for lawyers and specialists in the field to understand, not for the jurors. Two-thirds of jurors learn primarily through visual means, and the expert’s testimony is no exception.
     
  2. PREP WITH A TRIAL TECH: Have your hot-seat trial technicians practice direct testimony with the expert. Even experts who have testified before need to remain familiar with the flow of seeing documents presented in real time, making requests for live call-outs and highlights and working with demonstrative evidence. Experts are more likely to focus on their research and their conclusions than on the potential jurors’ responses to the information.
     
  3. PRACTICE DIRECT EXAMINATION: It is remarkable how often, in the rush to prepare for trial; expert witnesses go basically unprepared in high-stakes cases. Every bit of direct testimony should be practiced.  Direct should be like driving a high performance automobile on the autobahn, exhilarating but quite predictable.
     
  4. PRACTICE CROSS EXAMINATION: The importance of this cannot be overstated. An expert witness can make a great impression on direct examination, but a cross-examiner can be ready with one or two devastating questions that cast doubt in jurors’ minds on the expert’s conclusions, or even worse, on his or her methods and techniques. You should go over all possible lines of cross-examination and be ready for them. Very often, the same attorney who will ask questions on direct will prepare the witness for cross. We recommend recruiting a less friendly face from within the firm to ask questions to prep the witness.
     
  5. VIDEO AND REVIEW: Record a practice session for both direct and cross-examination. Review it.  Refine it.  Re-record it. Repeat until you are satisfied.
     
  6. USE EXPERTS AT A MOCK: We recommend testing expert witnesses in a mock trial format to see what lines of testimony work the most effectively. For some mock trials different strategies for the same expert can be tested.
     
  7. KEEP IT SIMPLE: No matter how complicated the issues at trial may be, the jurors need to remember a point or two from the expert’s testimony that they will understand. Get past the technicalities. You want the jurors to think something like this: “Remember what that expert said -- as much as the prosecutor was condemning the defendants for these commodities trades, they’re basically no different from trades that people do on the exchanges every single day.”  



expert witness demonstrative evidence

Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Trial Technology, Expert Witness

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    Authors

    KenLopez resized 152

    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


    ryanflax blog litigation consultant 

    Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


    dr laurie kuslansky jury consultant a2l consulting
    Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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