By Dr. Ken Broda Bahm:
The big moment finally arrived. After two years of investigations and fast-churning news cycles, Robert Mueller, the former Special Counsel who focused on Russian election interference and obstruction claims involving the President, finally arrived to testify before the House Judiciary Committee and the nation. But if House Democrats expected him to arrive with a fiery denunciation, like Moses returning from the Mountain top, that isn’t quite what they got. Instead, they got a witness who seemed a little hard of hearing, and who often needed to hear the question again to get on track with the questioner. But, more than that, they got a witness who treaded very carefully and would not stray beyond what he already said in the report. One hundred ten times he gave just a one-word answer confirming what the questioner had quoted. One hundred fifty five times he either said he couldn’t answer, or said he would defer to what is already in the report. The overall impression was of someone striving mightily to say as little as possible.
Now, to be fair, Mr. Mueller faced some pretty unique circumstances. First off, prosecutors aren’t used to testifying, so they’re not always skilled at it. That seemed abundantly clear. And, in the setting of a Congressional hearing, many of the “questions” were actually more like speeches, and his interrogators often cut Mueller off (“Sorry, this is my time“) when he tried to answer. But the biggest limit was probably Mueller’s own conviction, reinforced by a DOJ directive, not to stray from the “four corners” of the mostly-public report. Mueller wanted the report to be his testimony and, in some ways, that parallels what an expert witness might be feeling: “Can’t my work just speak for itself?” In Mueller’s case, maybe it can (especially if any of the comic book versions come out and the general public and lawmakers actually read the report). But for most experts, the answer is “No.” Jurors cannot just read the report (it’s hearsay) and, beyond that, the main point in having a live-expert witness isn’t the report, it’s the testimony. It is the opportunity to talk about it. In this post, I’ll share a few thoughts on not letting the work speak for itself.
Teach, Don’t Recite
Everything that Mueller was reluctant to do is what a good expert witness should be looking forward to doing. Taking the conclusions as a starting point, this is your chance to explain, apply, and (within limits) to amplify. In short, your goal isn’t just to state your methods and conclusions, it is to teach the jury what you did, what you found, and (most importantly) why it all matters to the task that lies ahead for the jury. Your emphasis is practical, and the question is how you can effectively connect with jurors on their own terms so they not only understand your testimony, they are able to use it in coming to the right conclusion.
Illustrate, Don’t Just Analyze
Robert Mueller was reluctant to comment on specific examples or scenarios. Experts, however, should relish that opportunity. They should look for the illustration that helps jurors understand the overall conclusion. In a product contamination case, for example, go ahead and share and explain the charts, the method, the studies, and the spreadsheet data. But if you can illustrate the phenomena by showing them a culture growing in a petri dish, that is probably going to stick with them a lot better.
Don’t Worry About Repeating Yourself
One thing that testifying experts need to get over is the idea that repetition is a waste of time. It isn’t. In deposition, it is perfectly fine and good to repeat what is already in the report. So, as long as you are being consistent, go ahead and put it into your testimony. You can even dispense with the line, “As I said in my report…” or “As I explained previously…” Just keep explaining in response to the questions. In trial, this is even more important as a way of getting to jurors. If the goal is teaching (and it is), then you might remember from your school days or parenting days that a big part of teaching is repetition. Be creative, and find different ways to explain it. But in our trial system, a certain level of redundancy is part of the system. It’s a feature, not a bug.
So go ahead and do what Robert Mueller couldn’t do: Take every opportunity you can to make it clear, convincing, and useful.
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Other Posts on Expert Witnesses:
- Experts, Cultivate Awe
- Experts: Complete the Credibility Checklist
- Being Useful to Jurors is No Accident (Tips for All Experts from an Accident Reconstructionist)
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