Mastering the Art of Expert Witness Testimony: Direct Examination in the Courtroom

As you approach the courthouse on the day of your direct testimony, think of everyone you encounter to be a member of the jury and act accordingly.

Do not fraternize with the litigation team or enter the courthouse with them.  That creates an image that isn’t helpful to your status as an independent expert. 

Immediately before you enter the courtroom, put yourself in the right mindset – relax yourself and think positively about your client, your analysis, and your opinion in the case.

Don’t allow yourself to think anything negative about jurors. 

Think about your own image as you enter the courtroom.

The jurors, lawyers, and parties have been there for days, establishing informal connections with each other.  

Enter the courtroom humbly, but confidently… you are the junior person within this group and you have to earn a place of respect.

Be mindful that expert witnesses are not particularly favored by judges and court staff. Be deferential in your initial attitude.  

When you take the witness stand and you are asked to state and spell your name, look respectfully at the court reporter and give him or her that information.  You want the court staff around you to respect you, and have a positive impression.

Your foundational testimony must be designed to respectfully present your qualifications.

The foundation must gradually prove you to be an expert and a teacher, but one who is likeable and approachable. Not a conceited know-it-all.

The technical presentation must be organized in a way the listener can understand the logic of the analysis, without getting mired in minute details.

The organization of the expert testimony should include clear breaks between different areas of the underlying analysis so the jury can mentally conclude one area before moving into the next.

When dealing with a complicated analysis, it is helpful to frequently break it down to… “the following three steps,” or …“there are four factors to consider when analyzing problem x.” 

The lawyer can then ask the witness for an explanation of step #1, then step #2, etc. You should design this outline and questions into your proposed script and practice with your lawyer.

Develop a question and answer series that allows for a balance of short answers juxtaposed with longer answers.  Make your testimony interesting.

Complicated concepts must be presented with straightforward, simple examples to make them real.  Work with your lawyer to develop workable examples. 

Simple graphics are very helpful to explain concepts and summarize opinions.

They shouldn’t be complicated spreadsheets or complex scientific formulas.  Regular people can’t easily follow these types of visuals.

Here are examples of bad graphics and good graphics.

Look at these graphs.  Yes, they are colorful and maybe even artistically pretty, but do they easily tell you anything?    Can you make sense of them without a detailed explanation? I certainly can’t.

By contrast, look at these two graphs.  

They may not be as artistic, but they are easy to understand.  They clearly show something to anyone who quickly looks at them.

How about these graphics…  do they mean anything to you?

I would rather see something like this, as opposed to a fancy formula:

The message is: keep your graphics simple and to the point.

Whom should the witness talk to when giving expert testimony?

A teacher will speak to students, the listeners to whom information is being conveyed. The expert should do the same, and try to do it with a conversational tone.  

Look at the lawyer when they are asking you a question, then turn to the jury when answering.

Don’t hesitate to invite your lawyer to interrupt you and request further clarity if your answers to their questions are confusing.

For instance, in a complicated part of your testimony, the expert might even look at the lawyer and say, “did that make sense, ms. Jones?”  

Be sure you have communicated in advance that you are comfortable being interrupted. The lawyer could state, “wait a minute, dr. Smith, please review the point that you just mentioned… maybe it’s just me, but I didn’t quite get that.” 

Direct examination should be a structured conversation between the lawyer and the expert, designed to lead to a logical conclusion.

As the testimony is presented, the lawyer should ask for the expert’s conclusion for each step of the analysis.

At the end of the testimony, the lawyer should ask for the expert’s final conclusion and whether the expert has reached it with reasonable certainty.

Finally, be mindful about structuring the testimony so that the fact finder sometimes has the opportunity to draw some of their own conclusions from obvious facts.  

If you carefully prepare in advance with your examining lawyer and develop a script, your expert testimony will be flowing and logical.

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