25 TIPS FOR EXPERT WITNESSES
By: Steven Babitsky, Esq.
Massachusetts Superior Court Judge and former trial attorney Dennis J. Curran speaking at the SEAK National Expert Witness Conference presented 25 practical and important tips for the expert witness.
The primary and most fundamental advice is to TELL THE TRUTH. This sounds easy, but it is not. To tell the truth, you must follow many other rules.
1. Understand The Question
Listen to the question. Pay attention. You cannot tell the truth if you have not heard and understood the question. If you do not understand the question, you must ask the questioner to make the question crystal clear before you answer it. Many problems arise from failure to listen to the question. This often happens when the expert assumes that he knows what the question is and stops listening before it is finished. Watch out for ambiguous references to “he/she,” “they,” “it” and vague time references in the question.
It is not a sign of ignorance, weakness, or lack of cooperation to require reasonable clarification of questions. It is a sign of ignorance and a casual attitude to the truth to answer questions that you do not understand. Know that lawyers often ask confusing questions because they are thinking ahead to the next question, are not using notes, have confused or misstated the facts, have misunderstood your earlier answers, or are intentionally ignoring your earlier answers.
2. Think Before Answering
Do not say “no” if the true answer is “I do not recall. “No” means absolutely not. “I do not recall” means what it says. The latter answer may well be more accurate than the former.
3. Don’t Accept Opposing Counsel’s Statements
Do not accept a “fact” merely because the attorney questioning you says it. While the fact may be accurate, if you do not know that, you cannot truthfully accept it.
Question: “You discussed the problem with Mr. Smith when you reviewed this letter with him, didn’t you?”
While you may have discussed “the problem” with Mr. Smith, if you do not recall having reviewed the letter with him, say so.
4. Do Not “Play Lawyer”
Don’t try to figure out why the attorney is asking you a particular question or set of questions if the reason is not immediately apparent. This distracts you from listening to the question and answering truthfully. Indeed, the lawyer may be confused. He or she may not even know why the line is being pursued and may not know what he or she is talking about.
Do not assume, particularly in a deposition, that the line of questioning is relevant to anything There is not necessarily a reason for every question. In a deposition, the lawyer may well ask a broad range of questions on subjects about which you know absolutely nothing simply to learn whether or not you know anything about those matters.
5. Focus On The Question
Devote all of your energy to answering the question accurately and not worrying about why it was asked. Give every question your complete concentration and focused attention. There is no such thing as an unimportant, minor, or “throwaway” question. A careless answer to a casual, “unimportant” question is not the truth. If you are distracted, say so and pause to collect your thoughts. Never answer without complete focus on the question
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6. Remember The First Rule
You are not required to know everything. Do not hesitate to answer “I don’t know” when that is the truth. Do not react to counsel’s disbelief or skepticism and decide that you know something which you do not. There are endless possible questions to which you do not know the answer. Do not let counsel make you feel that you are hopelessly uninformed or concealing something because you truthfully answer those questions “I don’t know.”
If the true answer to a question is “no,” that is the truth no matter how many times and in how many different ways the question is asked. You can expect opposing counsel to repeat questions on points when he or she is not pleased with your answers. Do not feel that counsel’s repetition somehow requires you to give a different answer unless, of course, you decide to change your testimony because it is not accurate.
When in doubt, remember the first rule, “Tell the truth.” If you are confronted with a surprise question, and you remember this rule, you cannot go wrong. Do not be concerned about whether you “should” say something that the question calls for. If the question requires an answer, give the true answer.
Be accurate in everything you say. Understand that the best way to cause the jury to disbelieve all your testimony is to make an inaccurate, exaggerated, unfounded, or false statement. This is true of the most minor matters as well as major matters. The jury expects and deserves the truth you have sworn to give.
One answer shown to be untruthful can sink all of your testimony. The judge may instruct the jury that a witness who has falsely testified on a material matter may be regarded as having falsely testified on other matters as well, which is only common sense. It matters little to the jury whether the false or inaccurate testimony concerns a minor matter or an important one
Since the jury cannot talk back to the witness or ask questions, some witnesses forget that every juror is listening to your every word and evaluating you constantly. The jury will welcome your candid, accurate testimony. An attorney may ask you if anyone told you what to say in your testimony. Understand that counsel’s only advice is to tell the truth.
7. Analyze Documents Carefully Before Answering Questions About Them
If a document is important enough for the attorney to use in questioning you, you should give it the same importance and scrutinize it carefully before you answer. Do not assume that you know the document already. You can easily confuse it with some other document. For example, if you are asked to “look at” a medical record before answering questions about it, do just that and take all the time you need. Look at:
(a) the heading, if any;
(b) the date and time;
(c) the name and status of the author of the records; and
(d) persons to whom copies are noted.
Only after examining these parts of the record should you read – carefully ‑ the content of the record.
If you follow these rules, you will indeed have “looked at” the record and you will be prepared to tell the truth in answering questions about it. You cannot do this if you simply glance at the record and ask for the question.
If the document is lengthy, you are not required to review and absorb it instantly. You can request a recess from the deposition or the trial and take all the time you need or, if you can do so comfortably, you can simply and slowly review that document for as long as necessary while everyone waits. Do not be rushed.
8. Do Not Argue
Lawyers argue. Witnesses testify. Answer questions truthfully without arguing with the attorney asking the questions. You will be distracted by argument. You will be diverted from telling the truth and you will not focus on the question.
Remember that the attorney may indeed be trying to upset and/or confuse you and that if you permit yourself to be confused or upset, you cannot tell the truth. If a pitcher in a baseball game permit himself to be upset, he cannot perform well, which is why the opposition tries to upset him. This means that your answers must be devoid of emotion or conviction. It means that you do not want to let your emotions control you and cause you to say things you do not mean.
Let the questioner be the one who is upset. Know that if the questioner harasses or bullies you, it is because you are a strong witness and your testimony is frustrating the lawyer. Stay above the battle. Let the jury focus its anger on the lawyer by contrasting your patient and reasonable behavior.
Know that counsel calling you can object if opposing counsel harasses you, but will not necessarily object at every single opportunity. The jury should hear from you, and not counsel, as much as possible. For example, if opposing counsel is argumentative, but you are handling that comfortably, counsel may not object. The jury will identify with you and will not welcome the examiner’s antagonism as long as you are testifying truthfully.
Do not be distracted if opposing counsel’s sequence of questions seem to jump around in time, or if counsel is otherwise disorganized in presenting the sequence of events.
While being questioned by opposing counsel, pay no attention to: (a) the tone of voice of the questioner; (b) suggestions in the question that tell you what the answer is; or (c) the attitude of the person asking the question.
The questioner’s attitude is irrelevant. All that counts is the question. Disregard sarcasm, skepticism, raised voice level, suggestions that the answer is obvious, and all other attempts by counsel to influence your answer. Be wary, also, of the attorney who is friendly and congenial as he quietly and subtly tries to discredit you. The lawyer cross‑examining you is not your friend, whatever his or her style.
Know that if counsel cannot attack you on important points, he or she may attempt to magnify and emphasize some minor point. Thrashing around on some minor point will not make it important and the jury knows that. Do not cooperate in this tactic by denying the obvious or refusing to admit something that is true.
11. Pay Attention
You must concentrate on the proceedings at all times while testifying. Do not relax and become inattentive after you have become comfortable in the witness chair. Pay attention to everything that occurs while you are testifying. Do not permit occasional boredom with familiar and irrelevant questions to affect your close attention. This is more often a problem in depositions than in court.
12. Be Cooperative
The jury is anxious to hear the truth. The jury does not like the witness who acts too important to be bothered with having to answer questions, who resents that something he or she says is open to question, who is pompous, who is always right no matter what, who is sneering or disrespectful to anyone, including opposing counsel or who, worst of all, says things that insult the intelligence of the jury.
Cooperation does not mean meekness or timidness. When you are sure of something, let the jury know that. That is the truth.
13. Take Your Time
You are not subject to a time clock or a deadline, particularly in a deposition, or even at trial to a reasonable extent. If you need time to tell the truth, take the time. Pause after every question: (a) to be sure you have heard and understood it; (b) to decide if you know the answer; and (c) to consider the accurate answer. Remember that if you were giving your testimony by your answers instead of orally, you would devote time and writing accurate answers. Your oral answers require the same time and concentration.
In a deposition, you can take all the time you need to consider the question before responding.
Do not let the examiner control the rhythm of the testimony getting you to give quick, rapid answers to rapid questions. Take your time to answer even a simple question so you will remember to take time with the more complex questions.
Do not be lulled by a sequence of quick short questions, e.g., four in a row to which the answer is a simple “yes”, and a fifth throwaway question at the end to which the answer is not a simple “yes.”
14. Correct Mistakes
If you realize that you have said something that was not accurate, interrupt the questioning and correct your answer. Otherwise, you are not telling the truth. You should do this even if the inaccurate statement was given long before you realize your error. You should not finish your testimony without correcting testimony if you are to tell the truth.
Everyone makes mistakes ‑ and it is perfectly normal; but you do need to correct it. You are not telling the truth if you knowingly leave the mistake uncorrected. If you do not realize a mistake has been made until your deposition has finished or you have left the witness stand at trial, inform counsel as soon as possible on this mistake.
Understand that it is perfectly proper for you to have reviewed these suggestions and to have met with counsel in preparation for your testimony. You will likely be asked to describe all documents which you reviewed in preparation for your testimony and to identify any persons, in addition to counsel, with whom you have spoken as part of your preparation.
Listen to the objections made during your testimony. If you do not immediately understand the objection, pay no attention to it. Do not get distracted by objections which are not clear to you. If the objections mean something to you, fine; if they are confusing, forget them.
17. Refreshing Recollection
If the other attorney shows you a document or a photograph or tells you someone else’s testimony, and asks if that refreshes your recollection, tell the truth. If your recollection is not refreshed, say so. Do not accept the lawyer’s suggestion that your recollection must be refreshed by this material.
If counsel who calls you tries to refresh your recollection with something, and your recollection is not refreshed, do not worry about this. If you do worry, you will not pay attention to the questioning.
The jury is entitled to your reasonable estimates on matters, but you are not telling the truth if you guess. If, for example, you have a basis to give a reasonable estimate of a date or time, do so, but do not guess.
If you expect a question on an important matter and you have carefully considered the matter, you can truthfully state, when asked the question, that you expected that the question would be asked and that you have given the matter a lot of thought and then give your best estimate. This shows that you did not make your estimate casually. That too, is the truth.
If your answer requires an explanation because a simple “yes” or “no” would be misleading, be sure to make that fact clear by your answer.
20. Depositions Used At Trial
If an attorney is telling you what you said at your deposition, you should request a copy of the deposition to read along with the attorney. Do not take the attorney’s word for what is in the deposition.
21. Personal Behavior
Do not take medication before your deposition or trial testimony or, if you must, be sure to tell counsel what effect it may have on you. Do not chew gum or candy while testifying.
Use your own words and not someone else’s. Avoid phrases like, “to tell you the truth,” or “to be honest.” Do not repeat the question before answering.
If opposing counsel interrupts your answer before you have finished, politely ask to finish it and, if necessary, ask the judge if you may finish your answer. Expect interruptions from opposing counsel when he or she does not like your answer; you must resist the interruption.
Likewise, unless you are trying to correct prior testimony, do not interrupt the questioner, even when the question is misstating your testimony or the facts. Wait until the question is finished. The court reporter can only record the words of one person at a time and, at trial, the jury can only listen one person at a time. So you must wait until the question is finished before answering, even when you think you know the complete question before it is finished.
23. Testimony of Others
When you are on the witness stand, do not look at counsel for help in answering a question. The jury wants your answer, not counsel’s, but if you need a document from counsel, ask for it.
24. Questions By The Judge
The judge may ask you questions during your testimony. All of these guidelines apply to questions by the judge as well, including, in particular, the importance of being polite and cooperative.
If, at deposition or trial, you become tired or unwell, say so and request a recess. You cannot testify truthfully if you are distracted by fatigue or illness. Fatigue is more often a problem at a deposition when there are fewer scheduled breaks than in court testimony. Know that it is not a sign of weakness to ask for a break in a deposition whenever you need it.
In a deposition, but not in court, you may be permitted to ask for a recess to confer with your counsel. The need to confer may arise, for example, if you suspect that a question calls for you to reveal privileged material or testimony which is subject to a protective order. Counsel should try to identify these areas during your preparation.