The Biggest Mistakes Utility Expert Witnesses Make When Testifying in Front of Administrative Agencies
Utility expert witnesses have many issues to deal with and overcome to achieve successful, persuasive testimony. Their testimony may be perceived as being biased, bought and paid for and constructed to achieve a specific result. The utility expert witnesses who avoid the biggest mistakes often made are much more likely to achieve successful, truthful, persuasive testimony. Training for utility expert witnesses in testifying skills can be very helpful to improve performance.
MISTAKE #1: NOT BEING PROPERLY PREPARED
Expert witnesses in utility matters who deal with issues regularly should not make the mistake of thinking that they need little or no preparation before testifying. The hearings often will be contentious with legal/regulatory issues raised. Opposing parties and their counsel will have spent considerable time and effort studying written testimony and reports. At a minimum the utility expert witness should have a complete and thorough practice session(s) of their direct and cross-examination. The person assisting the expert witness should identify and practice the most difficult issues/questions that the utility expert witness will likely face.
MISTAKE #2: ORGANIZATION OF THE FILE
The utility expert witness needs to organize her file so that she can easily access key documents while under the stress and pressure of a hearing. The golden rule is to touch each and every piece of paper in the file. The utility expert witness needs to make sure that the file is complete and no key documents, studies, maps etc. are missing from the file.
MISTAKE #3 NOT KNOWING YOUR AUDIENCE
The utility expert witness should make an effort to learn as much as possible about the board/judge/fact finder/decision makers. The more the utility expert witness knows about the fact finder/decision maker the more likely the expert’s testimony can be tailored to resonate at the hearing. At a minimum the utility expert witness should learn about the fact finder’s degrees, employment, likes/dislikes, values, hobbies and what makes “them tick”.
MISTAKE #4 INADEQUATE WRITTEN TESTIMONY
If the utility expert witness will be offering written testimony in advance of testifying the report should be complete, through, transparent, and fair. Anticipating and dealing with the difficult/challenging issues head on as opposed to trying to avoid them is the best practice. The written testimony should be bullet-proofed by a person/lawyer experienced in these type of proceedings.
MISTAKE#5 POOR PRESENTATION STYLE
The utility expert witness and an outside person should take a long hard look at the presentation style of the expert. Is he nervous, anxious, uncertain, defensive, condescending etc? All of these deficiencies in the delivery style need to be addressed and overcome. The utility expert witness needs to accept and understand that often how you present your message may be important as the message itself.
MISTAKE# 6 NOT READING AND BONDING WITH THE BOARD/FACT-FINDERS
The utility expert witness should never lose sight of the fact that she is there to inform and educate the board in a convincing and persuasive manner. The utility expert witness needs to be sensitive to the needs and desires of the board. Dealing with time constraints, the mood of the board and their desires is crucial. The utility expert witness needs to be flexible enough to assess the board and react to their needs as the hearing unfolds in real time. Being liked by the board and being perceived as a straight shooter will work to the advantage of the utility expert witness.
MISTAKE #7 NOT ANSWERING THE QUESTIONS OF THE BOARD EFFECTIVELY
The utility expert witness should be particularly sensitive and responsive to any and all questions posed by the board/fact finders. What the expert is testifying to is what she thinks the board needs/wants to hear. In fact the board knows precisely what they want/need to know and the questions they want answered. The expert should practice answering the difficult questions anticipated in a concise articulate, confident manner. Active listening skills to “hear” what is really being asked and the subtext to the questions is a skill that should be practiced as well.
Utility expert witnesses who diligently prepare for utility hearings and take pains to avoid the mistakes listed above will put themselves in the best position to succeed.