What Business Professionals Need to Know about Being an Expert Trial Witness.
Business executives are frequently required to provide testimony in depositions or trials relating to business matters in which they have had some involvement. Generally, the executive appears as a principal fact witness or an expert witness, and it is critically important for him or her to understand the procedures, strategies, and tactics of expert witness testimony.
The most important underlying consideration for expert witness testimony is a commitment to tell the truth, the whole truth, and nothing but the truth. No strategy or tactic obviates the foundational underpinning of this commitment. But given that litigation is an argument, opposing attorneys are frequently committed to disagreeing with the witness’s view of the underlying facts or resulting opinions. Business executives who are testifying as fact witnesses or experts should be aware of the strategies and tactics to protect their well-thought-out positions from attack by an opposing side of a litigation matter. A courtroom witness should not be an advocate for any side of a litigation proceeding, but she is an advocate for a competently derived opinion.
Effective direct examination testimony doesn’t begin at trial, it begins earlier in the process. If the executive is expected to testify as an expert witness, she should be aware that everything that happens during the communications and work-up of the case should be designed for presentation at trial or protected from being a problem at trial. The challenge of effective direct examination is to get a compelling story presented to the jurors while keeping their interest and ensuring their comprehension of the relevant material. Direct testimony is the climax of the expert’s entire effort in a litigation proceeding.
The direct exam involves the skill of reducing complex information to straightforward, understandable terms while not being condescending to the listener; maintaining a logical method of presentation; using the skills of persuasion while not appearing to be overly persuasive; understanding the needs of the listeners; teaching effectively; and, working jointly with the examining lawyer to share the burden of the presentation. The effective direct examination requires careful preparation—jointly with the examining lawyer—and a nuanced understanding of sophisticated trial techniques.
First and foremost, the expert is a teacher. Teachers succeed by understanding the needs of their listeners and delivering presentations that fulfill those needs with relevant content. Successful teachers take a pulse of the class often to gauge how interested their students are in the subject matter and whether something needs to be done to increase their participation, interest, or both. Unfortunately, an expert witness can’t ask jurors how they feel about the lesson being presented, but she needs to be mindful of the level of interest in the listeners’ minds and strive to reach them. Similar to a teacher, the witness has analyzed a complicated problem, brought her expertise to bear on the problem, solved it, and now wants to communicate the results of her analysis and opinion to some nontechnical listeners.
The expert’s first task on direct examination is to tactfully build credibility through foundational testimony that shows you are a qualified and trustworthy person who has done a thorough, competent analysis, brings some scientific objectivity to the problem at hand, and is worthy of being believed. You’re not a pompous know-it-all; you’re just a hardworking professional who was retained to look at a problem, analyze it, and derive a fair, balanced, supportable conclusion. You realize that an opposing expert may see the problem and solution differently, but you have no personal problem with that individual; you just believe he is not looking at the facts or the problem correctly. You also have no bias for or against your client or the opposing client; you provide technical services to help the court, and the jury understands a problem beyond their common knowledge.
A business executive expert witness has prepared a thorough analysis, considered the strengths and weaknesses of the substantive arguments, and derived opinions and conclusions that conform to the expert’s substantive specialty. During the case workup, the expert has received input from both the lawyer and client and hopefully, the expert has properly tempered any biased, argumentative positions presented to her by the client or the lawyer during the analysis phase.
Once the expert’s opinion is derived, the expert-lawyer team must decide how to present the analysis on direct examination. Both the expert and the lawyer succeed in the trial based on their credibility in front of the court and the jury. Belief in the expert’s case comes from a thorough, competent analysis of the facts and substantive theories resulting in an objective, defensible opinion. So, the real preparation for direct examination runs throughout the expert’s involvement in developing the opinion. In a perfect world—which rarely happens—the expert is on the “right side of the case” with a very sympathetic client, great facts, a tremendous lawyer, a bulletproof opinion, and a judge who leans toward your client’s side of the case. But welcome to the real world of litigation: two parties are disputing the facts, the law, and every technical point relating to their larger disagreement.
At trial, the interaction between the expert and the lawyer is a carefully coordinated dance that must be structured from their agreement on presenting the material to the trier of fact. Collaborative preparation between them can help each to understand the perspective of the other, leading to an excellent outline of the expert’s direct examination. And every expert witness’s direct examination should result from a carefully constructed outline.
The expert’s direct examination should proceed from a script, but the testimony must not appear scripted. Nothing that is said on direct examination should be articulated for the first time. Both the expert and the lawyer should have practiced every question and answer, so there is a logical flow to the testimony. For the witness, one preparation technique is to reduce technical concepts to simple examples, then practice saying phrases that illustrate the example.
Something is compelling about the expert testimony in My Cousin Vinny by the Academy Award–winning actress Marisa Tomei. She is the unwilling automotive expert for the defendants, explaining the concept of positraction to the jury, saying that “everybody knows when your car is stuck in the mud in Alabama, one wheel spins and the other does nothin’, that’s positraction.” As her explanation ends, the camera pans to an older woman on the jury who is nodding affirmatively and quietly, muttering, “Uh-huh.” This is a perfect example of creating an image to illustrate a technical point.
Another important consideration during pretrial preparation is using visual aids to support expert testimony. Scientific and technical evidence is complicated, and present it orally to a jury can be limiting. Many listeners learn and understand concepts visually rather than aurally, and well-done trial graphics are often essential to competent expert testimony. The variable here is the definition of “well-done” graphics. Many times the graphics will be too complicated to simplify testimony. Charts are visual depictions, not listings of numbers or formulas. For instance, a timeline must sequentially explain a chronology and not be overwhelmed with dates, times, and activities. For a complicated sequential depiction, consider using overlays or animation to continue to build a simple story into a more complex one; don’t start with the complete story and try to explain it. The graphic should speak for itself with very little explanation.
Finally, recognize the psychology of decision-making in the minds of most people. People don’t generally make decisions probabilistically or analytically, although technical experts tend to think in those terms. People make decisions narratively, from the perspective of stories. Jurors want their decisions to fit in with their perception of fairness, not necessarily technical correctness. Hopefully, your opinion is technically correct but think about its presence in the context of the theme and fairness of the overall position of the case as seen by your client’s side of it. Expert testimony must resonate with a group of ordinary citizens who are not technicians and who are trying to be fair. Don’t forget the technique of leading the fact finder to the precipice of a conclusion but letting the juror conclude himself or herself. This allows the juror to be invested in decision-making and not just be told the answer. There are no perfect approaches to presenting expert testimony, but the skilled expert should be open to varied presentation techniques.
Below are a few “rules of the road” for witnesses, particularly experts, on direct examination:
- Communicating with a juror in a case in which you are involved is inappropriate. Jurors have been advised of this protocol, so they tend to be mindful of the prohibition of communication with parties, lawyers, or witnesses, and they will know you’re not being rude by not being casually polite to them.
- Think of everyone you might encounter within ten blocks of the courthouse as a jury member, and conduct yourself accordingly.
- In and near the courtroom, you should maintain a detached association with the lawyers and the clients who have hired you. You don’t want to look like an integral part of the litigation team; you want to look like an independent professional who was called in to solve a problem.
- Although it has to be done sometimes, try not to huddle with the litigation team anywhere near the courtroom on the breaks.
- Needless to say, don’t walk in and out of the courthouse with your team.
- Enter the courtroom somewhat timidly. Be very polite, but not effusive, to the courtroom staff.
- When you arrive on the witness stand, you will be asked to state your name and spell your last name. At that moment, look respectfully at the court reporter who is probably sitting almost in front of you, and politely spell your name to him or her.
- Most courtrooms have a law enforcement person (bailiff or sheriff) who is responsible for security, order, and some other administrative tasks in the room. In my experience, those individuals tend to be authority-type personalities, and I go out of my way to treat them with deference and strictly obey their directives.
- Put yourself in a positive mental frame of mind in anticipation of your testimony. It’s analogous to an athlete believing she can break the existing record or win the game. Spend a few conscious moments thinking positively about yourself and your position in the case.
- Don’t allow yourself to think negatively about the jury, the jury system, or an individual juror. Reaffirm to yourself that the American judicial system is the best dispute-resolution method in the world and that you are contributing to the justice system.
How Problem Solving Keeps Advanced Students Challenged(Opens in a new browser tab)
Brian Peter Brinig is an Adjunct Professor of Law at the University of San Diego School of Law. He has testified as an expert witness in 300 trials and 600 depositions as a forensic economist in the past forty years. He is a CPA, non-practicing lawyer, and Managing Director of CBIZ Forensic Consulting Group in San Diego. His new book, Mastering the Art of Expert Witness Testimony, is available on Amazon.
Brian Peter Brinig, J.D., C.P.A.