Expert testimony at trial presents unique challenges to both the expert and the examining attorney. The expert is tasked with teaching complex material to a group of “students” with widely varying levels of education, comprehension, pertinent experience and yes, interest. The students give no feedback, the consequences of a teaching mistake can be significant, and there are people waiting for the opportunity to attack at the first sign of weakness.
The attorney’s job is to help the expert overcome and thrive in these challenges. It is no small task and the key is in proper preparation. Several strategies will help.
1. Be sure your expert understands the broad themes of the case and her/his role in it.
Even if an expert is teaching or opining on a narrow area, it helps for them to see the broader context. The more they know about the issues and vulnerabilities, the better they can avoid accidentally wandering into those vulnerabilities.
Also, experts sometimes feel frustrated that their testimony is constrained and they cannot tell what they see as the whole story. Offering a broader context during preparation can reassure the expert that (s)he is part of a larger team of witnesses who together will present a complete picture.
To this end, brief your expert on preferred terminology. Different experts may use different terms to describe the same concept. While you are unlikely to change that, be sure they include common reference terms so jurors know when experts and witnesses are talking about the same concept.
2. Talk to your expert about jurors’ comprehension levels.
Many experts have academic experience, but teaching Ph.D. students is very different from teaching those with high school diplomas, or less. The expert report was written for lawyers; now, it must be translated for jurors whose education may range from eighth grade to post-graduate. How can an expert effectively teach and persuade those at both ends without losing one or boring the other?
Advise your expert to start with the eighth grader. Be sure the first sentence or two is addressed at a level that a 13-year-old can understand. Suggest practicing with an early teenage child, grandchild, niece or the next-door neighbor’s kid — or at least imagine doing so. Let the pretend juror ask questions, forcing the expert to simplify the concept even further or find new language to teach a concept.
Teach your expert to make the same point two or more times with increasing levels of complexity. The less sophisticated jurors will catch it on the first go-round and the expert can keep the attention of the more sophisticated for the second.
Each time a new topic is introduced or a new aspect of the testimony is explained, begin
with the answer in its simplest form — whether an opinion or an explanation. Then, the expert can go into detail and show how these conclusions were reached.
3. Use visual aids with your expert.
Remember that people learn differently. Some are primarily auditory learners, others visual. Whatever the learning style and content of the testimony, graphics will help.
Use color and ideally animation to keep people interested. Be sure to include orienting graphics that help jurors track the key ideas of the testimony (e.g., “Five Differences Between This Product And The Patent”).
Jurors retain information best when they can integrate it into existing cognitive schemata — structures for organizing information. Design the schemata for them with clear summary charts.
4. Practice breaking up direct testimony into many questions with shorter answers.
The more you chunk up the material, the easier it is for jurors to take it in. And, the shorter the expert’s answers on direct, the less different the expert will sound on cross, where short answers are the norm. In prep sessions, practice getting answers of two sentences or so, to train experts in this way of communicating.
5. Subject your expert to tough cross-examination.
We’ve all seen experts who come across well in their direct testimony but start to fall apart on cross. The more prep you do for cross-examination, the better you are able to identify the expert’s weak spots in the safety of your conference room, and to address them.
Ideally, have someone from outside of your team — or a team member who has not worked with this expert — conduct the cross. It’s hard to resist pulling your punches with a witness you’ve come to know and like, and it’s better to protect your relationship with her/him by not playing the enemy.
Also ideally, resist the easy solution to let a younger and less experienced team member conduct the mock cross; rather, find a senior colleague who can step in and role-play opposing counsel. Match the dynamic at trial as well as you can to help your expert be as prepared as possible for unfriendly fire.
During this time when all of us are working under dramatically altered conditions, you may find yourself with more time than expected to prepare your expert for upcoming testimony. Virtual witness preparation sessions are an excellent use of this time. Especially if your in- person time with your witness before trial is limited, you can do much to refine the content of the testimony in videoconference sessions and then focus more on presentation in the live sessions before trial.
Videoconferencing can be effective for teaching context and practicing shorter, layered answers that build in complexity. Try to limit the number of people on the call (ideally, no more than two attorneys and the witness) and encourage the use of speaker view so that you and your witness can focus on each other.
Now is not the time to lose momentum on preparing your cases for trial. Use these strategies to engage virtually with your expert witness and maintain a competitive edge on day one when the courts reopen.
This article was published on Law360.com on April 17, 2020.