By Steven Babitsky Esq.
The direct testimony of an expert witness is often more important than cross examination. During direct testimony, the expert has the only opportunity to tell their story in an organized, chronological, and thoughtful way. Here are 17 mistakes experts often make during their direct testimony with the ways to avoid them.
1. Mistake: Not connecting the dots.
Solution: Work with retaining counsel and make sure he asks you the questions you need to connect the dots. Also, try out your testimony on a teenage relative and make sure that they understand it. If they don’t, rework your testimony so that it is more understandable.
2. Mistake: Not allowing the jury to see your human side.
Solution: Work with retaining counsel so you can be humanized and introduced in a way that brings out things about your background that the jurors may relate to.
3. Mistake: Using terms that jurors do not understand.
Solution: Use terms that jurors understand. If you recognize the need to define a term, do it in such a way to make it understandable. Test your testimony on a lay person to make sure you only use understandable terms.
4. Mistake: Failing to use analogies.
Solution: Use analogies. Plan them in advance and run them by retaining counsel prior to use.
5. Mistake: Not using numbered lists.
Solution: Use numbered lists where appropriate to support your direct testimony.
6. Mistake: Not dealing with problem areas and weaknesses during direct examination.
Solution: Deal with problems and weaknesses during your direct testimony where they can be better managed. This will also help take much of the sting out of the cross-examination on these issues.
7. Mistake: Appearing arrogant and thus making the jury hostile toward you.
Solution: Take great pains to avoid sounding arrogant. Admit mistakes, make concessions, avoid overtestifying, and do not exaggerate your own importance or credentials.
8. Mistake: Failing to get to the point quickly.
Solution: Get to the point quickly. Testify like a newscaster. Give the headline first, then explain. Use short, easy-to-understand sentences.
9. Mistake: Letting counsel appear to put words in your mouth.
Solution: Work with retaining counsel during preparation to make sure that she does not put words in your mouth during your direct testimony.
10. Mistake: Appearing rehearsed.
Solution: Do not interrupt counsel with your answers. Answer the question that you are asked. Pause and think before responding.
11. Mistake: Not studying the jury while you testify.
Solution: Watch the jury to see how your direct testimony is being received. If necessary, modify your presentation so that the jury will understand it.
12. Mistake: Getting outside of your true area of expertise.
Solution: Stay within your true area of expertise during your direct examination. Refuse to testify beyond this true area of expertise. If retaining counsel tries to get you to opine on areas outside of your comfort zone, inform him as early as possible that you are not an expert in those areas.
13. Mistake: Providing imprecise testimony.
Solution: Make your testimony as precise as possible. This will demonstrate that you performed a careful investigation and have mastered the facts of the case.
14. Mistake: Not developing and utilizing superior presentation skills.
Solution: Develop, practice, and perfect your presentation skills.
15. Mistake: Communicating a lack of confidence in your opinion by using hedge words.
Solution: Show confidence in yourself and your opinions and do not use hedge words. If you can’t state an opinion with confidence, don’t state the opinion at all.
16. Mistake: Performing demonstrations that do not work as expected.
Solution: Exercise extreme caution when agreeing to participate in live in-court demonstrations. It is usually better to videotape a demonstration done outside of the courtroom.
17. Mistake: Failing to use visual aids.
Solution: Keep your visual aids as simple as possible. When using electronic visual aids, have a hard-copy backup (say, an Elmo presenter with printed slides) in case of failure.
About the Author
Steven Babitsky, Esq. is the President of SEAK, Inc. the Expert Witness Training Company. He can be reached at stevenbabtisky@seak.com or 508-548-9443.