DIRECT EXAMINATION OF THE EXPERT WITNESS:
10 WAYS TO LOSE YOUR JURY
A ROY DeCARO, ESQUIRE
1845 Walnut Street, Suite 2000
Philadelphia, P A 19103
Lawyers like to think that they win and lose trials because of their great openings and superlative closings. In fact, it has been my experience in the 35 years that I have been a trial lawyer that to win a close case you must have excellent expert witnesses who are able to communicate their ideas to a jury in a concise and understandable way. Your selection and preparation of the expert is, of course, critical and you need to advise him or her as to what to expect from your opponent’s cross-examination. However, if you do not take that expert through a seamless direct examination first – the defense lawyer will be way ahead of the game. Direct examinations can be and usually are boring. The typical direct examination is an endless string of wordy hard to understand questions followed by less than clear answers from a witness who is struggling to figure out what he or she is being asked. It is a lawyer’s and expert’s job to make the examiner virtually disappear and to make the expert become the teacher that the jury needs.
If you do that you will not lose your jury.
1. WHEN HIRING AN EXPERT DO NOT CONSIDER HOW A JURY WILL PERCEIVE HIM.
You spend a ton of money finding and retaining an expert for an injured victim who has catastrophic injuries. This expert has great credentials, vast experience in the right area and he or she buys into your arguments totally. You spend hours preparing him or her for trial. Your expert is on the stand for a day and a half and when finished you thought he or she did rather well. The jury comes back with a defense verdict. After talking to several of the jurors they tell you that you could have won that case if you had a ”better expert”. Obviously you want to know what you did wrong so that you will not make this mistake again. When hiring this expert you did not consider how the jury would perceive him and, therefore, you lost this case before you started.
It has been my experience that jurors use entirely different parameters and criteria than lawyers do when it comes to grading the competency of experts. The view point between a lawyer and a jury are often just a disconnect when it comes to experts. Lawyers want big names with big credentials. Jurors want good teachers.
The expert that you need to help you analyze and evaluate a case might just be the wrong expert to put on the stand for a given case in a given geographical area. You must anticipate how jurors will perceive your expert before deciding to use that expert. Your expert will die on the stand if he or she cannot explain complicated concepts simply, or if he or she insists on making the ultimate decisions for a jury. You need to deal with these problems when deciding which experts to put on the stand, and then through an effective direct examination, these problems can be solved.
In hiring an expert lawyers tend to look for credentials, credentials, credentials. However, credentials are not always the most important part of how a juror evaluates an expert. There are cases where hands on experience is much more important than having some great academician.
For example, jurors invariably find that engineers who have actually worked with the equipment involved are more persuasive than the engineers who taught those engineers in college. Not infrequently, jurors with less courtroom experience are more effective before a jury than professional testifier. More often than not, experts with real world experience are what jurors want. Often, these more inexperienced practicing experts will be less likely deemed by a juror to be a hired gun and more seen as a person who is brought into the courtroom to give the juror the information needed to make the ultimate decision for himself or herself.
If an expert during an interview process can explain concepts to a lawyer simply and clearly then that expert will be able to do the same to a jury. The goal then on direct examination is have that expert, who is the right fit for the right case, explain to the jury in a simple and understandable way what happened and why what happened met or did not meet acceptable standards of the science in question. The best way to do that is through an effective direct examination with the right expert.
When hiring your expert you must consider how the jury will perceive him or her or you will lose that jury.
2. WRITE OUT EACH QUESTION TO ASK YOUR EXPERT ON DIRECT
One way for both lawyers and expert to lose credibility is when a lawyer writes out and reads his direct questions to a jury. If you write out each question you are going to ask your expert on direct – and actually read those questions – more likely than not the direct examination will be, at best, adequate. At worst, the lawyer’s questions will sound canned and insincere and that will rub off on the expert. The trick for the proficient lawyer/expert team in direct is to have a smooth and flawless conversation between the two of them where the lawyer disappears in the background and the expert connects with the jury. This cannot be done if the lawyer is simply reading questions. The lawyer/expert team needs maneuverability. This cannot be done if the lawyer is reading scripted questions.
When I was a younger lawyer of course I scripted my questions in advance. After several trials using this technique it occurred to me that I was paying more attention to my yellow pad than I was to what the witness was saying to the jury. I found that when my questions were written down in advance and when I actually was reading them that there was no flow or rhythm in developing the expert’s testimony. I found it was becoming impossible to have a conversation with a witness – and a conversation with the witness is what you want to do to give an effective direct examination. Moreover, these written out questions make the presentation somewhat robotic and causes the lawyer to not listen to the answers for appropriate follow up questions. If the lawyer does not give the expert the appropriate follow up questions he or she will be exposed during cross-examination.
The lawyer/expert will lose their credibility by using a script. No matter what, your questions will sound as if you are mouthing someone else’s words and your witnesses answers will sound rehearsed. In short, if you write out each question to ask your expert on direct – and actually follow your script – the direct examination is doomed to failure.
3. SPEND A LOT OF TIME ON QUALIFICATIONS
An expert’s testimony invariably starts out with the qualifications of that expert. Be forewarned, however, that the length of an expert’s Curriculum Vitae invariably will impress the lawyer more than the jury. Qualifying your expert up front is required because a judge will be determining whether the expert you put on the stand has the sufficient expertise to opine on matters which the jury needs to have information. The problem with the approach of taking your expert exhaustively through his qualifications up front is that you will lose the jury’s attention by the time you get to why the expert is even there. A jury will have no idea why that particular expert is being called at all unless the direct examination is conducted properly.
I find that the best way to start the qualification process is to ask two simple initial questions:
1. Question: “Mr. Expert would you tell the jury your name and explain to them what your profession is?”
Answer: ”My name is Joseph Smith and I am a thoracic surgeon.”
2. Question: ”Tell the jury why you are here today – what have I asked you to do in Mrs. Jones’ case?”
Answer: ”You asked me to explain to these folks why after I had gone through all the materials that you sent to me, that it is my opinion that Dr. Brown did not meet the appropriate standard of care in treating Mrs. Jones and that is why she died.”
Thus, the stage is set. The jury now is ready for you to get into the qualifications needed which puts that expert in a position to have his opinions heard. Thus, my third question, which is actually not a question, “Alright doctor, let’s briefly go through your education and training which puts you in a position to tell the jurors what they need to know about this case.”
If you present Qualifications in a boring long and uninteresting manner you will lose the jury.
I have seen attorneys time and time again spend a disproportionate amount of time on their expert’s qualifications. Jurors want the highlights. They want to know why the qualifications of this particular expert makes him or her most qualified to talk about specific issues in this particular case.
4. DO NOT SET THE STAGE BY GIVING APPROPRIATE BACKGROUND INFORMATION THROUGH YOUR EXPERT
Depending on the jurisdiction – some courts are more restrictive than others – I like to have my expert give his ultimate opinions before and after he or she provides the appropriate background information that is needed to formulate those opinions. The lawyer/expert team needs, through direct examination, to provide the proper background information that the jury needs to understand why an expert is giving an opinion as to liability and/or causation.
This is not only important background information as to what the facts are, but pertinent background information that they will need to understand the science involved. Remember, what you are trying to do through your expert in direct is having the jurors formulate their own opinion rather than have the opinion of the expert shoved down their throats. So not only will the jurors need to be given facts as to why they are even in the courtroom, but as important, they will need to understand the scientific concepts and terms that will apply to any given case. You cannot persuade a juror to take a view until that juror comprehends what it is you are asking him or her to do. If the proper interchange is conducted between the expert and the attorney, then when you do get to that ultimate opinion, before you turn your witness over for cross-examination, the transition will be smooth. If you do not set up the jury, through the expert, with the appropriate background information and scientific principals it needs, you will have to constantly interrupt your expert at the most crucial point of his or her testimony.
In short. if you do not provide appropriate background information to the jury prior to your expert giving the ultimate opinion, you will lose that jury.
5. HAVE YOUR EXPERT IMPRESS THE JURY BY CONSTANTLY USING TECHNICAL TERMS AND CONCEPTS
It is baffling how many attorneys and experts during direct examination simply will be trying to impress the jurors with how much they know. If your expert knows a subject cold but cannot convey his or her thoughts to the jury, what good is it. If your expert wants to speak over the jurors heads, what good is it. That opinion will not be accepted no matter how appropriate it is.
The starting point in making sure that the expert can successfully communicate to a jury is, of course, intense preparation. There is no better advice to give an expert than to tell him or her to keep things simple and to use clear language that a non-expert will understand. A lawyer must impress upon the expert that if an 8th grader cannot understand her or him, then there are members of the jury that will not understand the testimony.
Jurors will relate to those experts who teach them what they need to know, yet are not deemed to be lecturing them about what they need to know. Undoubtedly, the longer an expert talks without laying out the foundation of the case, the more likely they are to lose a jury. One common problem for both experts and lawyers is that we often forget about what we actually did not know before we started to live with a particular case before it is presented to a jury.
Invariably experts who are extremely involved in a particular subject will just assume that jurors know more than they do. It is incumbent through the direct examination to translate the expertise into plain English.
At the other side of the matrix, of course, it is important in the direct presentation to not have your expert over teach. To bombard the jury with excessive information using overly technical terms is often counter-productive. Jurors will get lost in details and scientific minutia which will make it far more difficult for them to stay with an expert’s most important points. A good teacher/a good expert will have a few main points and will present those points to a jury in a concise, simple and understandable fashion to set the stage for closing argument. A jury needs just so much information and not too much information.
Having your expert attempt to impress the jury by constantly using technical terms will lose that jury.
6. LEADING QUESTIONS ARE OBJECTIONABLE SO NEVER LEAD YOUR EXPERT
A little law is in order here. Generally a leading question is one that suggests the answer to a witness on the stand. Generally, a lawyer is not allowed to ask a leading question because it tells the witness what to say. If your question does not do that then it is not leading. Unfortunately, most lawyers do not understand this concept, and many judges do not either. So the basic rule is that leading questions are not permitted on direct examination, but the questioner and the expert must know that there are a lot of exceptions to that rule. For instance, leading questions are permitted on preliminary matters when they are not on dispute. This is where the lawyer/expert team can make the direct concise and interesting. In short, in taking experts through their testimony I will lead, lead, lead, lead. That is I will lead on preliminary matters that are not in dispute and then even beyond if it will keep the presentation interesting.
You lead because you can get to the point quickly and efficiently. You can be where you want to be with the expert without boring the jury to tears before your expert gets to the meat of why he or she is there. Without leading your expert, the testimony will be long and dry. It is important that your expert understands before taking the stand that you are going to lead in areas that are not in dispute. It is at that point that you will have a fluent conversation with the expert and move things along.
So if you do not lead at the appropriate times. your direct examination will fall short.
7. ALWAYS USE LONG ELABORATE QUESTIONS IN TAKING YOUR EXPERT THROUGH DIRECT
It is clear then that the attorney and expert need to use simple and understandable language in going through the direct. A common error that is made by the questioner is to employ lengthy and compound questions which incorporate many thoughts. This necessarily will invite confused responses. Fittingly, this will be the shortest paragraph that I will write in this paper. Use short Questions which are understandable and you will not lose your jury.
8. NEVER USE ANALOGIES
Analogies are the lawyer’s and expert’s best friend in getting a jury to truly understand what is going on. There is nothing like a good analogy to make a complex problem simple. Study after study has shown that jurors most understand things when verbal images become visual thoughts. A pathologist explaining that once a particular poison gets into the blood stream it is as unlikely to be removed as removing a drop of ink from a glass of milk will get the visual message clearly to a jury. A thoracic surgeon explaining that an undiagnosed aneurysm is like an expanding bubble on an inner tube of a bike tire will get the message across to a jury in a graphic way. A cardiologist explaining that the blood vessels around the heart were getting clogged, just as a bathroom drain gets clogged over time, will telegraph to a jury why a delay in putting a stent in contributed to a heart attack. These are all simple and easy ways to get points through to jurors. If you want to work at losing a jury, do not use analogies.
9. NEVER FACE THE PROBLEMS IN A CASE DURING DIRECT EXAMINATION.
One of the most important parts of direct examination is anticipating the weak points of your case and confronting them up front. There is nothing worse than forgetting to ask an expert witness to explain the problem areas of your case in direct examination and having him then grilled about it on cross-examination. Whether it is a substantive point or a minor point the lawyer and expert need to prepare and talk about these issues on direct examination.
For example, if you think a jury will be turned off by your expert’s high fee, ask him up front what the charge is and why. Also be prepared to even go further during redirect. One example I recall is an expert cardiologist I used who charged $750 an hour. I brought that out in direct but the defense lawyer went after that anyway. On redirect I asked my expert how long the defendant cardiologist spent doing the operation in question. I asked him to look at the records and tell us how many hours it took to do the surgery. He replied two hours. I gave him a billing sheet and asked him how much the cardiologist charged for the surgery. He replied $2,500. You do the math. Whether the issues are the high fees that experts are charging or their courtroom history which may suggest bias, or specific weaknesses in your case, these all need to be dealt with during direct examination. If you do not do that you could lose your jury.
10. NEVER USE DEMONSTRATIVE EVIDENCE IN YOUR DIRECT THROUGH YOUR EXPERT
The adage “a picture is worth a thousand words” is never more accurate than when dealing with jurors. This is particularly so through the use of expert testimony. A lawyer during direct examination needs to do whatever he can to assist the jury in understanding an expert’s testimony. There is no better way to do this than through demonstrative evidence. From the day you hire an expert you and he need to be thinking about what kind of demonstrative evidence can be used to demonstrate a point or buttress an opinion. Demonstrative evidence should be used to explain things and to illustrate. Moreover, it can and should be used to prove an important point. If one uses simple and clear language which is buttressed by demonstrative evidence to show what the expert is actually talking about, you are on the right path to prove the case. If you do not use demonstrative evidence through your expert, you may well lose the jury.
Experts need to be good teachers. To be a good teacher they need to speak the language that a jury will understand. To do that they need to be concise, not overly technical and absolutely understandable. If the above 10 pitfalls are avoided the jury will be engaged and wanting to buy into your expert’s conclusions.