TESTIFYING AS A WITNESS Flashcards
Testifying expert
give opinion testimony when specialized knowledge is needed to help the jury understand evidence or determine a fact in issue
conflict of interest (expert witness)
exists when an expert’s ability to objectively evaluate and present an issue for a client will be impaired by any current, prior, or future relationship with parties to the litigation
Consulting experts
hired to provide technical assistance to the attorney in preparing the case
Relevant testimony (expert witness)
assist the jury in understanding the evidence or determining a fact at issue. To be relevant, the proposed testimony must have a tendency to make the existence of any fact more probable than it would be without the evidence. Testimony is not relevant if the jury can make its own determination without expert testimony.
Reliable testimony (expert witness)
product of reasoning or methodology that has a reliable basis in the knowledge and experience of the relevant discipline and is based on adequate data
Depositions of Expert Witnesses
sworn testimony given by a party or witness upon questioning by counsel for one of the parties before trial and outside of court
Narrative questions
broad, opened ended questions that allow experts to present their opinions in their own words with minimal prompting from the lawyer
Hypotheticals
fictional situations, analogous to the act in question, which clarify and highlight particular aspects of the dispute
Myopic Vision
entails getting the expert to admit to a great amount of time being spent in the investigation of a matter, then selecting an area to highlight about which the expert is unsure or has not done much work. This area might not be central to the issues in the case, but it must be relevant to the conclusions reached. Then, the opposing counsel will make a large issue of it and prove that the expert’s vision is myopic in that the work was limited in extent or scope and, as such, substandard. At the same time, the matter of fees could be drawn in to show that large sums were expended to have this “obviously incomplete” work done.
he four main functions of all expert testimony and offers advice on fulfilling each assigned duty:
• Establish the facts. You must first develop a strategy to collect and examine the
documentation in the case. The discovery process, which is a mechanism for full
disclosure of all knowledge pertinent to the case, usually yields a vast amount of paper,
which the expert then must sift through to make a preliminary classification of relevance
• Interpret the facts. Tie together cause and effect relationships with the data and the facts for
the technical basis of your case. Do not be fooled by correlation that seemingly links
cause and effect but holds no theoretical justification.
• Comment on the opposing expert’s facts and opinions. Develop a good understanding of the
opposing experts by reviewing their educational background and experience. Read their
publications. Probe for weaknesses that your side might exploit. Oftentimes trials
become a battle of the experts. Prepare for the battle with as much intelligence as you
can muster. Take apart the opposition’s expert report, which represents the other side’s
best case, piece by piece. Your attorney needs to know the most intimate details about
the facts and opinions contained in that report.
• Define the professional standards in the particular area of your opponent’s expertise. One of the most
critically important ways an expert is used in trial is to define the “standard of care” exercised by fellow professionals in the field. Standard of care has been traditionally
defined on the basis of judgement normally exercised by professionals in good standing.
Additionally, the professional must be informed or aware of current practices and
promulgation. Obsolete practices are now considered by the court to be negligent
practices. Thus, professionals must exercise reasonable, informed judgement in carrying
out their duties. You, as the expert, will be called upon to define the professional
standard and to measure that against the standard of care exercised by the professional(s)
on the other side.
Keep the following six tips in mind when preparing an expert report:
- Be brief.
- Avoid ambiguity or inexact language.
- Avoid generalisations; be specific.
- Add charts or graphs where appropriate.
- Reference your work.
- Meticulously check the report for accuracy and neatness.
narrative version of the events
This detailed summary of the facts of the case serves as the raw material for
rendering an official opinion.
Generally, before allowing an expert to testify before the jury, the judge will make three
determinations before allowing an expert to testify before the jury:
- Is the person qualified as an expert witness?
- Will the expertise of the witness assist the jury in understanding the evidence or determining a fact at issue; in other words, is the testimony relevant to the facts of the case?
- Is the testimony reliable?
To qualify as an expert, counsel must establish that the witness is
sufficiently knowledgeable on the subject at hand by showing formal education, skill, or experience.
For skilled investigators, deposition provides a golden opportunity to hear the other side’s
case aloud. The opposition may set ulterior goals as well, including:
- To learn new information or confirm existing facts
- To appraise the expert’s ability as a witness
- To lock the expert into a hard-to-defend position
- To create a written record for future impeachment
sk that a long or imprecise question be
rephrased or broken into smaller components
In cross-examination, do not respond
too quickly. Counsel for your side might wish to
interpose an objection to the question.
sk for a repetition of the question or clarification if
you do not fully comprehend it.
Opposing counsel also might attempt to take psychological control of a witness by:
- Using physical presence to intimidate.
- Non-stop eye contact.
- Challenging space of the witness.
- Asking questions at a fast pace to confuse witness.
- Not allowing the expert to explain or deviate from the exact question.
Safety
This approach often is taken by not attacking the expert and hence lulling him into a feeling
of false security. Then, opposing counsel might find a small hole that quickly can be
enlarged. This approach often is characterised by being friendly and conciliatory, by which
the jury is made sympathetic to the cause of the opposing counsel. Opposing counsel also
might attempt to achieve a certain amount of association with the witness that will make the
witness want to help the opposing counsel to bring out information. Doing so may result in
the witness giving information that otherwise would not have been given. With this
additional information, it might be possible to find a chink or hole in the evidence and open
it further.
Contradiction
Opposing counsel might use leading questions to force the witness into a hard or
contradictory position. Alternately, counsel can establish the credibility in court of a
potentially contradicting document or quote from other articles written by experts in the
field. If these documents or articles are in contradiction to the expert, then an admission can
be obtained from the expert as to that contradiction. If a contradiction exits, the expert
might be drawn into an argument as to who is the most appropriate or experienced person.
New Information
Opposing counsel may introduce new information that the expert might not be aware of.
This normally is done to introduce confusion in the witness’ mind in the hope that the
witness might contradict himself or develop a series of alternate scenarios, given the new
information to show that the existing report and opinions are no longer of value.
Support Opposing Side’s Theory
This approach recognises an expert’s qualifications and evidence. The same information
used by the expert is then interpreted by opposing counsel in a different fashion to support
an alternate theory. By getting the expert to agree to the alternate interpretation of the facts
and the alternate theory, the opposing counsel, in effect, has made the expert a witness for
the other side. This technique is useful to obtain concessions from the witness that would
damage his conclusions and, ultimately, his credibility.
Bias
This method draws the expert’s counsel and the expert together to show possible collusion
as to the evidence being presented and hence to demonstrate bias. This can be shown if the
opposing counsel can determine that the expert’s counsel had instructed the witness as to
what to say or by limiting the expert’s scope and hence his conclusions. This approach also
can focus on the question of whether or not the expert was told by his client what to do and
look for. With this approach, opposing counsel might attempt to show that the expert
overlooked important documentation in an effort to assist his client.
