Mastering the Art of Expert Witness Testimony: Scripting the Expert Witness Direct Examination

The expert’s direct examination should originate from a script, but the testimony must not appear scripted. 

Knowing that expert testimony has to be presented in question and answer format, the expert should reduce the proposed testimony to a question & answer format and collaborate with the examining lawyer .  

Some authorities say it’s never a good idea to have the expert write the direct examination questions, I respectfully disagree. A competent expert should know the most effective way to break down the analysis into a simplified form so it can be explained to non-technical people.  

A less-experienced litigation lawyer needs your help, and an experienced lawyer will want to hear your input.  So don’t be shy about proposing a script of your testimony for consideration.

Offer your script to the lawyer as a proposal only, deferring to them. I have found that lawyers typically welcome the help.

The expert witness is a teacher – the soloist – and the lawyer is the conductor of the orchestra.  

When developing the script, always begin your foundational expert testimony with the question, “what are you here to testify about today, dr. Smith?”  don’t start with “where did you get your degree?” because the jury needs to know why you are there, before they hear your qualifications.  

Your foundational questions should allow for a logical presentation of your background, education and experience. Ensure that:

1)  they aren’t pompous or self-serving (and structure it so the lawyer has to drag it out of you a bit). You don’t want to be pontificating about how great you are as soon as you get on the witness stand.  That’s a turn-off to the listener.

2)  you want questions that emphasize your humanity, (for instance, “give me an example of what you do in a day or a week,” or an example of the typical case that you’re involved in). Again, you’re designing the questions – give your lawyer some help here.

3)  always affirmatively deflect any possible weaknesses in your experience. Questions like: “How many times have you done this type of analysis before?”  or, “You’re being paid for your services today, aren’t you?” or, “How much are you being paid per hour?”

You are proposing these questions to your lawyer in a draft script of your testimony.

Of course, you want to discuss and agree with your lawyer about all the major points of your direct examination.

At the end of the foundational questions and answers, include a question for the lawyer to ask the judge to rule that the witness is legally qualified to testify as an expert on the question of x.”  it’s beneficial to get this confirmation from the judge.

In the main part of the expert’s testimony, the expert should design questions for the lawyer to ask, to take the expert through the analysis one step at a time.

This scripting provides the opportunity for both the lawyer and the expert to think through the logical presentation of the testimony.

The scripted questions should ensure that the lawyer is leading the expert to the next logical step of the analysis while letting the expert explain what they have done. 

The lawyer’s questions should be “open” questions, allowing the expert to narratively explain that part of the analysis.

The lawyer’s questions should not be “closed” questions that restrict the witness to yes or no answers.  These are not beneficial on direct examination because they limit the expert’s explanation.

The proposed script should also be designed to wrap up sub-steps of the expert’s analysis, asking for conclusions at the end of each step of the analysis.

The script should provide clear transitions between the steps of the expert’s analysis so the listener has an understanding that the testimony is moving along from “step 1” to “step 2” to “step 3”.

The lawyer and the expert should plan to keep the testimony at a high level that allows the expert to explain larger, logical steps of the analysis with conclusions. Do not drill too deeply into the minutia of the expert’s analysis. 

The script should include some questions about possible weakness in the experts analysis.For example, propose a question about why this step couldn’t be perfectly performed (or some other alleged imperfection).

Ask the expert to explain what he did to compensate for this alleged or perceived weakness.

Ask why the expert is comfortable with the overall analysis, despite this alleged weakness.

This technique covers the concept of “deflecting your weaknesses on direct.” it’s critically important to deal with any alleged weaknesses in the affirmative and present how the expert has considered the alleged weakness and incorporated it into the analysis and final conclusion.

Do not ignore weaknesses in any part of your analysis. If you do, you’ll certainly hear about them on cross. 

Two final points:  do not prepare the proposed script of your testimony before your deposition or you will have to produce it to the opposition at your deposition.  

Do not take a copy of the script to the witness stand on the day of your testimony.  Just use it to prepare for your expert testimony.

In the next video, we’ll discuss strategies and tactics for successful presentation of expert witness testimony in the courtroom.

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