By Dr. Ken Broda Bahm:
I recently finished sitting in on a three-week trial, and throughout the testimony, many of the experts were led through their direct. One expert in particular, the other side’s expert thankfully, made it through her entire direct examination without saying anything other than her name, “Yes,” and “That’s correct.” Even on the simple questions, the examining attorney would say, “And you graduated from LSU? Majored in economics? Worked for seven years as a private consultant? Testified for both plaintiffs and defendants, right?” And of course, when it came to her main conclusions, each was presented in a way that enjoyed the attorney’s wording, emphasis, and explanation, not the expert’s. This witness should have played a pretty important role in the trial, answering the question to the extent in which the injured plaintiffs would be able to work again. But every single item of substance came from the attorney, not from the expert earning thousands of dollars for being there in court. The message to the jury was, the expert isn’t really the expert, and it is all really coming from the attorney.
Leading an expert through parts of the direct examination is something that is done for efficiency and control – I get that. But attorneys can frequently put the goals of efficiency and control ahead of the goals of credibility, good communication, and persuasion. I believe that in most cases, leading your own expert is a really bad idea. In this post, I will discuss some of the reasons why, and I will share recommendations on good open-ended questions for your experts.
Why Not Lead?
The attorney conducting the expert examination I describe above, I believe, simply thought that leading was the most efficient way to get all of the exact conclusions into evidence in the shortest possible time. I understand the motivation, but it is shortsighted: an efficient way to drain all credibility from your expert witness. As far as I know, leading the expert witness is generally allowed (e.g., see People v Campbell (1965) 233 CA2d 38, 44; Comment to Evid C §767) but judges will sometimes sustain the objection if the practice seems to be abused. Fundamentally, though, it shouldn’t be necessary. You put an expert witness on the stand because you want that witness to be understandable, believable, influential, and remembered. You want that expert to be a teacher. You don’t get there by leading.
I would say there are three good reasons not to lead your expert.
One, it makes the expert appear to be a rubber-stamp for the attorney. The led expert doesn’t seem neutral, independent, or smart.
Two, it disempowers the expert, creating within that person the feeling that they’re just there to agree with the attorney. A witness who feels passive and compliant might be somewhat okay in direct, but could be disastrous in cross.
Three, it prevents the expert from being a teacher. The best experts are able to step outside the adversary frame, stylistically at least, and supply jurors with the kinds of useful and informative engagement that they remember from their best teachers in school. To do that, the witness has to be the one doing most of the talking.
Alternatives to Leading:
The way to get your expert talking and to serve as their proper role as experts is to ask open-ended questions.
- What are you here to tell this jury?
- What is the central issue you want to address?
- Tell me how you got to your conclusion?
- Why is that a fair method?
- How does your approach give the other side the benefit of the doubt?
- Do you have any criticisms of the other side?
- How do you respond to the opposing expert’s criticism?
- Why do you say that?
- How do you know?
- Can you break that down for the jury?
- Can you show your work?
Now, one big response to this from the litigator who likes to lead might be, “What if I can’t trust my expert to get the right stuff out, in the right way, and in the right amount of time?” But there’s a good response to that: practice. Go ahead and buy a few more hours of that expert’s time, sit down and finalize that direct examination outline together, thinking of it as a joint lesson plan, and then do as many live practice sessions as it takes for the testimony to come in clearly and persuasively without leading.
______
Other Posts on Expert Testimony:
- Look for the Expert’s Mental Mistakes
- Address the Expert’s Earned Dogmatism
- Experts: Stay in the Box
______
Image credit: 123rf.com, used under license, edited by author.