Trial preparation begins long before your direct examination.
Here are three key points to remember regarding long-term trial preparation:
Your best preparation is the thorough and objective development of your analysis and opinion in the case. Don’t allow your client or their lawyer bully you into blindly adopting their arguments on your substantive issue. Don’t yield to that pressure.
2. Proper file documentation… know how to document your files so your comments are not used to impeach you on the witness stand.
3. Know the tactics for giving an effective expert deposition. Won’t be a you don’t want a transcript out there that’s could be used to cross-examine you at trial.
These three foundational points are essential for trial preparation, and they happen long before your direct examination.
Short-term trial preparation starts 30 to 60 days before trial.
Direct examination is a structured dance between the expert and the client’s lawyer. It requires the skill of reducing complex information to straightforward, understandable terms.
Design a logical method of presentation, using your skills of persuasion while not appearing to be overly persuasive.
Most importantly, you have to understand the needs of the listeners.
Direct examination is a three-part teaching presentation, consisting of:
The expert’s foundation;
The analysis of the technical issue, and;
The resulting opinion that the expert has reached.
After the teaching presentation is designed in the planning phase, it has to be broken into a question and answer format for presentation at trial.
It’s critically important to work with your lawyer to plan and design this script.
In the main part of direct examination, no question or answer should be articulated for the first time on the witness stand.
The expert and the lawyer should have practiced every question and answer so there is a logical flow to the testimony. Collaborative preparation between you and the examining lawyer can help each to understand the other’s perspective.
The expert’s direct examination should proceed from a script, but the testimony must not appear scripted.
Your foundational testimony requires careful consideration. You are the competent, qualified expert, but be aware that some people tend to perceive this as being conceited. You don’t want to alienate any jurors with an overly self-confident attitude. Humility is required.
Focus on relevant aspects of your background and experience that tie into the specific issue you are testifying on. At the end of your foundational testimony, make sure your lawyer asks the judge to rule that you are a qualified expert.
The substance of your testimony should present an interesting, technical story designed to meet the needs of the listeners.
An interesting story must have clear breaks within it so the listener knows when one point has been concluded and the next step of the outline is beginning. It’s ultimately the lawyer’s job to structure these breaks, but the expert should identify them in the preparation phase.
Be mindful of the tendency to get mired in unimportant details. Divide your technical story into a broad, logical outline.
With your client’s lawyer, consider any weaknesses in your analysis and plan your presentation to include them. Every analysis has some weaknesses and good direct examination strategy includes deflecting weaknesses in the affirmative, rather than waiting until cross examination for them to be raised.
Think through some simple, real-world examples to explain difficult concepts in your technical area.
For example, if you’re testifying on economics,use current economic issues, like inflation, to make your analysis understandable.
A construction defect can be presented in the context of a personal residence or apartment, and the inconvenience of “living” around it. Use practical examples to explain complicated concepts.
Plan those examples with the examining lawyer and seek agreement on their effectiveness.
Agree on the use of trial graphics. Recognize that many listeners are visual and simple graphics are very helpful to explain timelines, complex concepts, or summaries of opinions. Make sure they are clear and not confusing.
Think about the opposition to your opinion and plan to state your opinion, knowing that your opinion will be contradicted.
Ask your lawyer about the litigation experience of the opposing counsel. Can you find any information on their experience, reputation, or style of cross-examination that might be useful?
Finally, on direct exam, the lawyer should be the conductor of the orchestra, not the soloist. The expert is the soloist. Plan your direct testimony accordingly.
Remember that expert testimony is teaching the audience. You are giving a logical presentation that ends with a clear conclusion after its logic has been explained..
Note that I give the expert witness a lot of responsibility in working with the lawyer in the preparation phase.
The expert is the one who knows the technical area and they shouln’t be timid in proposing the structure of the examination to the lawyer.
An effective presentation on the witness stand doesn’t happen by accident. Work with your clients lawyer to make it the best it can be.
In the next video, I talk about scripting your direct examination.
