Dan Small: Many cases rise or fall on the testimony of expert witnesses. That can complicate a case considerably and make an ordinary juror's job even harder. Special attention has to be paid to the preparation, presentation and refutation of expert witness testimony. The direct examination of an expert witness normally follows a certain choreography with at least four components:
- establishing the witness' expertise
- establishing the witness' familiarity with the subject matter
- eliciting the expert opinion
- eliciting the basis for the opinion
Let's go through each one just briefly.
First, establishing the witness' expertise. The first step is to establish that the witness is, in fact, an expert in the relevant field. Most expert witnesses will have a curriculum vitae that sets this out in sometimes excruciating detail. Typically, the CV includes: formal education; training, such as internships and fellowships; experience in both the general area and the specific focus of the case; honors, awards and prizes; membership in professional organizations and recognitions or positions held; publications, papers and speeches; prior qualifications; and testimony as an expert witness. Much of this you may want to place before the jury, but not all of it. As a general rule, you want to make sure that relevant experience is established beyond a doubt, but you don't want to wallow in detail. More important, you have to bring it down to a real-world level.
For example, listing degrees is nice, but most jurors don't know what it took to get that degree, what it means or what it qualifies you for. Take the Ph.D., a common degree for expert witnesses. The term has been in use for almost 200 years. But what does it even mean? Hopefully not the derogative Ph.D. "piled high and deep." Actually, it stands for Doctor of Philosophy. But even that's of little help in most litigation. Philosophy here refers to the Greek meaning of the word, which is love of wisdom. Now we're getting closer. But how do you get a Ph.D.? How long does it take? What kinds of classes? What kinds of research? What kinds of review of your research? And, how does any of this relate to this case, these issues? You have to bring it to life, all of it.
So, second, establishing familiarity with the subject matter. The second step is to establish that the witness is familiar with the subject matter of the case. This is accomplished by asking questions about what the witness did to familiarize themselves with the case. Normally, the expert will have done things such as review records and deposition transcripts. Sometimes an expert will interview a party. For example, a psychiatrist might interview a defendant who contends he has a mental health condition, or an accident reconstruction expert might visit the scene of the event. Occasionally, expert witnesses will be present at the trial, during the testimony of witnesses. Try to think of ways to make your expert's expertise real. If there is a scene, if there is a place, if there is an event, have them go there so they can say, "I was there. I saw it with my own eyes." If there's a process or a procedure, have them try to replicate it so they can say, "I did that with my own hands." Try to make qualifications and familiarity more than just words on the page.
Number three, eliciting the opinion. The third step is to elicit the opinion. This is usually accomplished in two questions:
"Doctor Expert, do you have an opinion as to the time of death?"
Answer: "Yes."
Question: "What is that opinion?"
Answer: "The time of death was between 12 midnight and 3 a.m."
The principal reasons for the formal two-step approach are one, to make very clear what exactly the witness is opining on, and two, to permit the opposing party to interpose an objection as to the witness' expertise or basis for rendering the opinion before the actual opinion is delivered.
Number four, eliciting the basis for the opinion. The fourth step and the most important one is where the expert states the reasons for the opinion.
"Doctor Expert, would you please tell the jury the basis of that opinion?"
Answer: "Well, I have concluded that the victim died between midnight and 3 a.m. based on four pieces of medical and scientific evidence A, B, C and D."
Question: "Would you please go through each one of those in detail? Let's start with A."
And so on.
A good expert witness is a teacher. Ideally, you want to get the expert off the witness stand, standing in front of the jury, in front of a chalkboard, real or metaphorical, chalk or computerized, doesn't matter — in other words, doing the things that good teachers do. A good expert normally will be allowed to give narrative answers, at least within some reasonable bounds. You should nonetheless assert some degree of control. Taking things one topic at a time, asking the questions that the jury might ask and stopping to explain technical terms or other difficult points. Jargon can either be an obstacle or an opportunity, an opportunity to say, "Mr. Expert, let's stop for a minute. Tell us what that really means."
Whatever you do remember, this is your case, and it's your responsibility to make sure that your expert has given testimony that is both clear and persuasive.
