Helping Your Expert Thrive in the Hot Seat: Part Three

Presenting expert opinions at trial

The last phase in presenting persuasive expert testimony is putting the expert on the stand at trial. Appearance and presentation take on more importance here, as does connecting with the jury. A jury views a trial much like an audience watches a play, except the jurors are not there by choice, and they may not have any interest in the subject. They are given the task of determining the truth between two opposing sides, while each side is presenting an alternate and often contradicting story, often through the same witnesses and evidence. The stories are told through the witnesses who are not professional communicators. Each new witness will have the jury’s full attention for only a brief period and must capture and keep jurors’ attention by hitting the key points before their interest wanes. Don’t put bore them with a recitation of facts from the witness’s CV.

Appearance counts

As each new witness takes the stand, the jury attempts to evaluate the information provided and understand how it fits into the context of the case. A juror’s evaluation of a witness can be influenced by subjective factors, such as whether the juror thinks the witness is likeable or trustworthy. The weight jurors place on experts’ opinions will be based on how the experts conducts themselves, how they interact with the attorneys and the judge, and how confident the experts appear in their opinions. An expert should be conscious of his or her demeanor and communication style with the jury. Suggest that the expert think of the jury as a group of new acquaintances with whom the case is being discussed. Presenting technical or scientific information to a diverse group can be a challenge. One approach is to present such material at the level of a high school science class.

A jury’s perception of a witness will be greatly influenced by the witness’s demeanor and posture. Two of the most effective ways to achieve this are for the witness to sit up straight and sit still. Slouching, leaning, or reclining, indicates sloppiness and a lack of attention. It is possible to go too far in the other extreme by sitting too stiffly, but it is better to err on the side of being too straight. Hands should stay in the witness’s lap, or resting on the ledge or table in front of them. Unnecessary fidgeting and movement suggests that the witness is nervous; and in the eyes of the jury, a witness who is nervous must be hiding something. Encourage the expert to stay calm and polite when answering.

Encourage eye contact

Emphasize that the jury is the audience and that the expert should attempt to maintain eye contact with members of the jury. The expert should not stare at one juror too long, but move his or her gaze back and forth to all members of the jury, so that none feels left out. Encourage the expert to direct answers to the jury when responding to attorneys’ questions. This may seem a little unnatural, so help the expert with this by phrasing questions to include “would you please tell the jury . . .,” or similar phrases. Remind the expert they should treat the camera like the jury when giving testimony in a videotaped deposition.

Projecting confidence

In addition to eye contact and demeanor, confidence is projected through the witness’s answers. The most confident answers are short because they convey the message that nothing else needs to be said. Long narrative answers lose the interest of the listener and signal wavering, or that the witness’s original point is inadequate and requires further explanation. Shorter answers also have the advantage of allowing the attorney to better control the direct examination.

Another way for the expert to project confidence is to avoid arguments on cross‑examination. The cross‑examiner is not scoring any points if the witness remains patient and persistent. The goal of the expert is to defend his or her opinions without appearing to be overly defensive. While it is important that the expert not allow the opposing attorney to put words in his mouth, tell the expert it is just as important to avoid theoretical debates and petty arguments.

The expert in motion

Encourage experts to use gestures to help animate their testimony. Movement and activity that has a purpose will not be perceived as nervousness, but will help to keep the jury’s attention, and make the expert’s testimony more memorable. As a result, you should look for opportunities to have the expert stand up or leave the stand, such as to indicate ideas on a chart or discuss an exhibit.

Connecting with the jury

The jury will feel a genuine connection with an expert when the expert describes the case in familiar terms. When a witness uses an example or an analogy that the juror can relate to from their daily life, it will make the juror feel like they understand the case better. It will also make the juror feel that the witness understands the case and the jury better. Examples and analogies help translate the case from theoretical to the practical.

Another way for the witness to make a connection with the jury is to use language that is active and dynamic. Suggest that the expert use forceful words that have power and impact when describing their opinions in order to emphasize the more significant aspects of the expert’s testimony. Dramatic words, if overused, can suggest exaggeration.

In conclusion, by helping expert witnesses understand the interplay between deposition and trial testimony, and to view the case from the jury’s perspective, you will increase their ability to be persuasive witnesses.

About Steven D. Groth

I am a partner in the Litigation Group of Bose McKinney & Evans. My practice concentration is in transportation, business and personal injury litigation. I defend clients in the trucking industry against wrongful death and serious injury claims. I also represent businesses in connection with contract disputes, construction accidents and construction defect claims. In addition, I represent individuals and businesses against personal injury claims.
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