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Expert
Witness Preparation
Have you ever wondered
why court proceedings aren’t more like an episode of Perry Mason? Chances
are your expert witness is probably even more perplexed that real court
proceedings differ so drastically from their favorite episode of Perry
Mason. Taking time to familiarize your witnesses with legal system ground
rules will go a long ways to towards preparing them for their courtroom
appearance.
The adversarial legal system:
The adversarial
approach is alien to the typical Engineer, Physician or Scientist. The
concept of presenting two different viewpoints and then selecting the
most compelling argument runs counter to the typical expert’s training.
Most experts are trained to use the scientific method and look at all available
information, determine what is most relevent and
then make a decision. In an adversarial setting, each side is only
interested in presenting information that supports their point of view
and would prefer to ignore any information to the contrary. Once the
adversarial points of view are presented, the judge, arbitration panel or
jury must sort out the most compelling argument. Making sure your expert
witness understands the difference between the courtroom and the
laboratory helps the witness understand why lawyers may be focusing on
questions that seem irrelevant.
Expert testimony is NOT a conversation:
The witness should be
aware that every word they speak is being recorded and can be analyzed
and scrutinzed long after the words are spoken. The witness must not
assume or anticipate anything. The
expert witness must listen carefully, and consider the question a moment
before responding. In normal
conversation, you fill in the blanks for the questioner to help the
conversation flow. For example, if someone asks “Do you know what time it
is?”, a typical person anticipates what the
questioner really wants and will respond with something like “8:30”. In the courtroom, answer the question only. An
appropriate response to the question above would be either a “Yes” or “No”.
There is no need to fill in awkward silences and it’s
ok to spend as much time as needed to review or read documents on the
stand. The expert witness should avoid conversational approaches to
questioning and exercise extreme politeness regardless the demeanor of
the one asking the questions. Carefully considering the question and answer
before speaking will help the witness avoid making unintentional
statements that may have to be addressed later from the written record.
The
hypothetical question:
My personal favorite,
the hypothetical question is often asked of experts to see what their
response is given a set of circumstances that could be wildly different
than the actual conditions. The witness should first of all make it
evident that the question is a hypothetical question, probably has
nothing to do with the facts in the case under consideration, and any
response given by the witness will be a guess, since it is a hypothetical
set of conditions.
Additional Information for your Expert Witness:
The Pennsylvania Bar
Institute (PBI) provides continuing education courses including the
course “Powerful Witness Preparation” which covers expert witness
preparation from the lawyer’s point of view. The PBI courses are open to
anyone interested in expanding their knowledge of our legal system. Preparing
prior to the court appearance will help benefit any witness who is
expecting to walk into an episode of Perry Mason.
» Contact
SassCo for more information.
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