By Dr. Ken Broda Bahm:
Experts have a tough job translating sometimes technical detail to lay audiences and working closely with a party to the litigation while still maintaining the role of “teacher” rather than “advocate.” Some excellent and wide-ranging advice on how to thread that needle comes in the form of a couple of recent podcasts from New York’s Prosecutor Training Institute. Institute attorney and NYS Traffic Safety Resource Prosecutor, Lauren Konsul, speaks with John Kwasnoski, a reconstructionist, physicist, and professor emeritus of Western New England University, and the two interviews together contain a wealth of practical and well-explained advice on the expert’s pretrial preparation and testimony.
While some of the advice focuses on issues which are unique to accident reconstruction, most of the recommendations are broadly useful for experts generally. In this post, I will highlight seven of those tips, but the full interviews are also worth a listen.
Part one of the interview is available here:
And part two is available here:
What follows are some of the most important and broadly relevant recommendations from the interviews:
1. Know the Judge
When you testify as an expert, your judge has a great deal of control over what you’ll say and how you’ll say it. Pretrial rulings, the manner of handling objections, and the judge’s overall demeanor all set limits. To pick one issue, how much will the judge allow you to get out of the box and be a teacher? Professor Kwasnoski recommends asking counsel for details about the judge’s preferences, or better yet, watching the judge in court in order to get a good sense of their style in admitting testimony.
2. In Qualification, Identify What Is Unique About This Witness
For the attorney and the expert witness, the stage of witness qualification should not be just a formal ritual. Instead, it should address the practical utility of the witness. “I think the jury has to understand why this expert is in the box,” Kwasnoski explains, “So it is really important in the qualifying question to identify how unique this witness is for the jury.” Focusing on that uniqueness should help to position the expert as “the best person who can help them understand the case.”
3. Use Headlines With the Witness
In direct examination, the expert needs to know where the attorney wants to go. Professor Kwasnoski uses the example of being handed an exhibit and asked a broad question like, “Please tell us what is depicted in this photo.” And knowing that he could talk about the road conditions, or the skid marks, or the vehicle damage, or any other factor, he says, “In my mind, I’m thinking ‘What in the heck do they want me to talk about?'” In pretrial meetings, the expert and attorney should prepare with the exhibits they plan to use and talk about how they will be used and what the emphasis or message of each one will be. Then, during the examination, the attorney should lead in with a headline like, “Let’s talk about what we learn from the damage to the vehicle…”
4. Don’t Talk Like a Textbook
At the front of their minds, experts know that they need to communicate to those who don’t share their technical specialization. But in the back of their minds, I think many still feel that technical language conveys expertise. That tendency to “talk like a textbook” can also come about as a result of long habit. As Kwasnosky explains, “The only people they’ve heard talk about reconstruction is their instructors. So they talk the way their instructors talk.” He emphasizes that, even when technical knowledge can be explained, it is important to remember that jurors aren’t there to learn it. They need to know about it, but it is more like they want to know what time it is and they want to know that you know what time it is, but don’t want to know how to build the watch.
5. Keep the Math to a Minimum
“The governing rule is that jurors hate math,” Professor Kwasnosky notes, and he’s pretty firm on that: “We want them to understand things, and using math prevents that.” He uses an example: calculating speed from skid marks might involve 15 different numbers, but only one number (the estimated speed) is the one you want jurors to latch onto. “Picture a juror’s brain with just a swarm of numbers in it, 15 numbers swirling around and one of them is the one you want them to hold onto for later when they talk in the jury room. And then picture a juror who has only one number, and that is the number you want them to remember. It doesn’t take much to figure out that less math is better.”
6. Inoculate
A key part of preparation between the expert and the hiring attorney is to, with clear eyes, identify any problems that may exist so jurors can be inoculated against these problems in direct examination. “The embarrassing moment for an expert,” Kwasnoski writes, “happens when the defense is asking questions that the prosecutor should have asked.” So if there is anything that is likely to be problematic, cover it first. When you allow it to be introduced in cross, then you create the opportunity for the other side to make it look like you’re hiding something you don’t want to admit. That, in turn, makes it seem like a bigger issue than it actually is.
7. Grant Concessions on the First Try
Professor Kwasnoski draws a distinction between opposing attorneys who attack the heart of the opinion and those who just want you to make a series of concessions. Though the latter approach sounds weaker, stacking up concessions during cross-examination (you’re not opining on this… you didn’t do that…. you don’t know about this… etc.) can be very powerful at weakening an expert witness. So the best advice is not to make it a chase. “I think a favor the prosecutor could do is to tell the expert witness that giving concessions isn’t pivotal, it’s not going to turn the case upside down,” Kwasnoski explains, “and they should give the concession on the first try, and not lose their credibility by fighting off a concession.”
What an accident reconstructionist is saying through testimony is, “Here’s what I know, and here’s how it is based on a systematic analysis you can trust.” Ultimately, that is what every expert witness is saying.
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Other Posts on Expert Witnesses:
- Experts: Be Experienced, Confident, and Visual
- Admit it Experts, You Don’t Know Everything
- Experts, Tell a Visual Story
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