By Dr. Ken Broda Bahm:
I participated in a recent LinkedIn discussion on expert witnesses, with some in the conversation noting that experts are often unprepared for testimony, and often unaware of the need for better preparation. And, to complicate that process, attorneys can be too deferential to those experts, or can operate from the concern that by engaging in a “practice session,” or by bringing in a communication advisor, they might be opening their expert to lines of questioning about how they prepared. That concern can, of course, be legitimate, but the upshot of that skittishness is that even many experienced experts are guilty of perpetuating communication behaviors that are not at all ideal for either their own credibility or for the fact-finders’ understanding.
A somewhat recent article speaks to this need for better expert communication. A team of legally-trained psychologists (Brodsky, Dvoskin & Neal, 2017) write from their experience leading workshops for forensic experts on ways to testify effectively. The focus is on gaining familiarity with the process, getting past the anxiety about testifying and being cross-examined, and adopting the right frame of mind. They write about the “baits or temptations that can draw an expert into behaviors that are unbecoming.” It is great advice, so for this post, I would like to draw from, boil-down, apply, and supplement that feedback in order to provide a succinct set of takeaways focusing not just on the temptations, but also on the imperatives for effective testimony. Reframing them as “commandments,” I would also like to focus on the positives the expert should strive for, along with the negatives to be avoided. So, with that in mind, here are seven commandments for good expert testimony.
1. Thou Shalt Be Informative, Not Argumentative
The authors write about how argumentativeness can be a lure for the expert witness, seeing the testimony as a way of intellectually sparring with opposing counsel or, by proxy, the opposing expert. That’s an understandable mindset, but fact-finders are less interested in the fight than they are in just getting the information they need to make their decision. So, experts need to reframe the encounter: It isn’t a test of abilities between you and the examining attorney, it is an opportunity to inform a fact-finder. In trial, the fact-finder is present, and in the deposition that fact-finder simply lurks in the future, but either way, they’re the ones who need the information. So, focus on educating that audience by providing better information without feeling the need for the kinds of competitive game-playing that can undercut credibility.
2. Thou Shalt Be Confident, But Not Arrogant
An expert might have spent their testimonial career focusing on their credentials and the impressive weight of their conclusions. In the process, experts can feel like it is part of the job to come across as all-knowing and unassailable. For that reason, the authors write about the lure of narcissism, and in particular the perception from lay jurors that the expert witness is arrogant, or simply difficult to like. That said, confidence is definitely part of the package, and jurors take a lot from the certainty or the uncertainty with which a witness delivers their conclusions. So, while the expert should be clear and confident on the central conclusions, it is no sin to say “I don’t know,” or “I would have to look into that” on the more peripheral matters.
3. Thou Shalt Be Calm, Not Testy
For experts, sitting through deposition or cross-examination can mean being challenged on one’s qualifications, methods, reasoning, and consistency. Being poked and prodded over time can yield an emotional reaction. Experts might find themselves unable to cope with questioning that is aggressive, repetitive, insulting, or simply uninformed. To get through it, experts need to practice in keeping their emotional center when being challenged, and avoiding the temptation to respond either aggressively or condescendingly. They should take breaks, take a breath before answering, remember the goal of informing rather than fighting, and keep their focus on the critical audience, which is not opposing counsel. The goal is to remain calm and unflappable.
4. Thou Shalt Be Clear, Not Obtuse
The expert is speaking within an academic field, and access to that specialized body of knowledge is the entry ticket to being able to testify. But that does not mean that fact-finders will be impressed by fancy terminology. More likely, they will be mystified by it. The authors write of the “lure of scientific language,” along with the advice for experts to be very conscious and careful about their language. Instead of using that specialized vocabulary as a way to separate yourself from the laypeople, experts should think of expertise as a bridge: Their testimony allows those not specifically trained to nonetheless understand the core concepts they need for this case. So be as clear as possible, use the correct terms but define them first, and use anecdotes and metaphors. The goal is not to be impressive but to be understood.
5. Thou Shalt Focus on Usefulness, Not Triumph
The courtroom, of course, is more of a “win or lose” context than most academics are used to. Still, experts can be unduly worried about the prospect of losing, and that can impact the credibility of their testimony. Instead of feeling the obligation to carry the case over the finish line, experts should focus on the specific task — to get their jurors to understand and use the concepts being conveyed. What happens after that is ultimately not in an experts’ control. Aiming to look beyond the “win” can also apply to past cases. For example, questions might focus on past situations where testimony wasn’t accepted or where the jury went the other way, and in response, the authors suggest a good frame of mind: “My job is not to win a case but to answer the questions as truthfully as I can, letting the chips fall where they may.”
6. Thou Shalt Be Strong, But Not Absolute
An expert might feel the need to dig in and not yield an inch to the other side. In the process, they could come across as denying the obvious, or simply being stubborn. Ultimately, you do not want to come across as being so committed that you will say anything. While you should be strong on the central conclusions, being credible can often mean being flexible elsewhere. For example, are there any areas where the opposing expert is correct? If so, then say so, especially where it is a point that doesn’t influence your ultimate conclusions. An absolutist view that you are right on everything, and they are wrong on everything won’t be as credible as some honest acknowledgment, paired with the information that your analysis is ultimately going to be more useful to the jurors.
7. Thou Shalt Be Concise, Not Verbose
The final lure the authors write about is in talking too much. The academic’s habit is to walk through all of the premises before a conclusion, and to be comprehensive in laying out all of the considerations. The general public, however, does not usually have the patience for that pedantic standard of completeness. So as an expert, you might need to unlearn some of these habits and practice the art of boiling down the expression. A statement is not more impressive by being longer. Once you’ve made your point, and once you have answered the question, stop talking. Practice at making your testimony clear, simple, and concise.
At the end, you might be thinking, “Why seven commandments? Wouldn’t a better number be, say, 10?” But that just further reinforces my last bit of advice for the expert: Don’t try your audience’s patience by doing more than you need to.
Other Posts on Expert Testimony:
- Address Anti-Expert Bias: 5 Ways
- Experts: Use Anecdotes, not Just Data
- Experts: Testify Remotely Without Losing Influence
Brodsky, S. L., Dvoskin, J. A., & Neal, T. M. (2017). Temptations for the expert witness. J Am Acad Psychiatry Law, 45, 460-3.