Preparing Your Experts

We have studied more than 150 cases and interviewed over 1,000 jurors.

The following juror comments excerpted from post-trial interviews illustrate factors which routinely affect the effectiveness of expert witness testimony.

Over-Rehearsed Testimony

Testimony that sounds as if it has been rehashed between witness and attorney will cause jurors to discredit the witness. Jurors do not trust testimony that is rote.

“Both he and the other expert witnesses seemed so programmed. It was like they knew what the questions were going to be, and they were ready with the answers. He came across like a professional witness and was not very genuine.”

“Her testimony sounded like she was reading it from a script.”

“His testimony proved to me that the expert was just doing this for the money, and he didn’t really care.”

Mistaken and Self-Contradictory Testimony

If the opposing counsel points out errors, jurors are usually quick to react to even minor mistakes in testimony. In deliberation, jurors remember and discuss errors in witness testimony even if the errors may be unimportant to the legal issues that the jury is charged to decide. Jurors look for any possible reason to support their overall bias about the case outcome. Expert witness errors, no matter how inconsequential, are fixated upon and used as rationalizations to support a juror’s position. Therefore, any slips which are exploited in cross-examination can be used to destroy the credibility of the witness.

“It appeared that he made a mistake. How did he goof up, especially when he had all of those bar graphs? He created a lot of problems.”

“The witness’ little charts cost thousands of dollars, he used inappropriate numbers, didn’t do deductions properly, presented things in a roundabout way and gave a lot of incorrect information.”

Often, jurors report that an expert’s credibility can erode instantly and dramatically during testimony. One of the costliest errors an expert witness can make is to contradict himself. In one such case, an attorney asked the defense’s expert witness about some technical information. After the expert witness delivered a quick, self-assured response, the attorney held up a journal in which the expert had written an article that blatantly contradicted his own testimony. The result: A plaintiff verdict.

“The witness was asked if the wind went through the valley. He said, “Very probably.” When he was asked again, later in the day, he said, “Not possible.” I was confused.”

Unenthusiastic Testimony

Expert witnesses can quickly undermine their effectiveness by showing the jury that they really would rather be anywhere else than in court.

“He did not seem happy to be testimony. He was somewhat hostile in his attitude. He kept looking up at the ceiling and yawning. I thought about saying something to the bailiff or the judge to keep him awake.”

In addition, experts who testify in great technical detail run the risk of boring the jury.

“His testimony was too lengthy, and he threw out too many dates.”

“He became annoying, almost nitpicking. He was very painstaking. During the deliberations, someone said he could not answer questions without looking them up in a book.”

“I couldn’t understand a thing he said. He was too technical and didn’t speak in layman’s terms enough.”

But in technical cases, jurors appreciate the expert witness who is a good teacher. Like all good teachers, the effective expert does not ramble in lofty jargon, but succinctly explains concepts in terms which jurors can readily understand.

Misfiring of the Hired Gun

It is not necessarily true that seasoned witnesses with more courtroom experience will be more credible. Experts who are too smooth and spend too much time in the courtroom are often characterized as hired guns. Though a hired gun may demonstrate a better courtroom presence, jurors often prefer a less polished witness who spends more time actually practicing their specialty. This is especially true if the jury discovers that the expert testifies exclusively for one side. Jurors are more comfortable with expert witnesses who rarely testify or are delivering testimony in their first case.

“I questioned his impartiality given the fact that he testifies so much.”

“He spends more time in the courtroom than he does seeing patients. I wondered how great a doctor he really was.”

The second misconception revolves around the premise that witnesses lose credibility just because they are paid a great deal of money. While knowledge of the amount paid to an expert witness for testifying may not hurt the witness’ credibility, this awareness does raise the expectations for the witness’ performance. Jurors demand a well-paid expert to earn their money. When a well-paid expert does not perform well, that side incurs a considerable loss of credibility.

“He was very clear and understandable and was not condescending. I believed everything he said. And when they told us how much he made for testifying, it didn’t bother me. I wasn’t surprised.”

Stellar Witnesses

What then, impresses jurors about an expert witness? The following jurors’ comments highlight what jurors thought were the outstanding characteristics of expert witnesses who testified before them:

“He was the key to the whole case. His confidence made him very effective.”

“He knew the answers to questions and he never faltered. He was impressive. He stressed his points. He was biased, but he was effective.”

“As a foreman, I would lead the discussion and his name kept coming up. In deliberations, jurors kept saying, “He said that” or “He said this.”

“He was credible, calm and competent.”

“He was professional, open-minded and straightforward in his answers.”

“He explained the terminology. He made it clear.”

Problems with Witness Demeanor

Jurors are also very aware of how much attention the witnesses pay them. The most common way that jurors measure this is through eye-contact. A witness who consistently looks at his or her attorney and effectively ignores the jurors will be seen as less credible and less believable.

Juror comments from post-trial interviews suggest that the following behaviors by witnesses weaken credibility:

• Appears ill at ease or nervous
• Uses indirect eye contact
• Crosses arms defensively across chest
• Quibbles over common terms
• Sits stiffly
• Drinks a lot of water
• Looks to attorney for assistance during cross-examination
• Cracks jokes inappropriately
• Uses a defensive or evasive tone of voice
• Uses lots of “ah’s or uh’s”

On the other hand, juror comments identify the following behaviors that enhance credibility:

• Uses powerful speech
• Appears relaxed and at ease
• Maintains eye contact with attorney and jury
• Likeable and polite
• Displays an even temperament in direct and cross-examination
• Doesn’t become angry or defensive when pressed
• Not affected by interruptions or objections
• Uses understandable language
• Doesn’t need too much time to think before answering

Overcoming Witness Problems

Jury consultants are often involved in assisting witnesses with communication problems and helping them communicate their case to the jury. One problem we have observed with high-level corporate representatives is that attorneys are sometimes reluctant to take control. The testimony of Bill Gates in the Microsoft antitrust trial is a good example of what can go wrong when the witness is too headstrong. What we see more frequently is that enough time has not been spent working with key witnesses or the lead trial attorney has not had enough time with the witness. The lack of time spent reviewing the case facts and learning where the testimony of the witness fits into the theory of the case often creates significant problems when a case goes to trial.

There are no magic formulas for improving witness presentation. For most attorneys, it is important to note that you are not changing the witness’ personality but simply his or her behavior. For most troublesome fact witnesses, the solution is a practice session with video feedback. Practice sessions and thorough review of testimony needs to be done in advance of trial before anxiety levels are too high and in order to allow for enough time to schedule a follow-up, if needed.

Attorneys sometimes get frustrated with a witness and will get angry or negative in working with them. What is most important for the attorney is to realize that there are limits to the effectiveness of the woodshedding approach to changing the demeanor of a witness. One of the most effective change strategies is for the attorney to use a positive approach, and often positive feedback or suggestions for change. Several examples will clarify this idea.

• For the sarcastic or negative witness, suggest that they try using the tone of voice they would use when talking to someone they respect.
• For the witness who speaks too softly, suggest that they over correct. To the quiet person, sit across the room and ask them to speak too loudly.