Chapter 11 EFFECTIVE EXPERT TESTIMONY

• Jurisdiction: United States

Chapter 11 EFFECTIVE EXPERT TESTIMONY

Hon. Steven W. Rhodes (ret.)

An expert witness has but one job: to persuade the judge or jury that the witness's opinion is more credible than the opinion of the other party's expert. That's it! This chapter addresses how to do that one job.

This chapter first briefly addresses the minimum requirements for the admission of expert testimony. But these are just the minimum requirements. Meeting them does not mean the battle will be won. It only gets the expert in the door.

This chapter then focuses on how to win the battle of the experts by exploring the ingredients that give an expert's testimony credibility: qualifications, believability, likeability, professionalism, independence, and soundness of judgment. The chapter then turns to the crucial matter of preparation for both direct examination and cross-examination. Advice on using demonstrative evidence is also offered here.

The chapter concludes with a brief review of an important study that every testifying expert should know about: a study by the Federal Judicial Center of how judges view and rate the testimony of experts.

I. Admission of Expert Testimony

Rule 702 of the Federal Rules of Evidence sets forth the circumstances in which expert testimony is admissible in court:

A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:

1. the expert's scientific, technical or other specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue;
2. the testimony is based on sufficient facts or data;
3. the testimony is the product of reliable principles and methods; and
4. the expert has reliably applied the principles and methods to the facts of the case.

In Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court stated that as "gatekeepers," the district courts must "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable," and set forth several factors to be considered in determining the admissibility of an expert opinion under Rule 702.³⁷⁸

In Kumho Tire Co. v. Carmichael, the Supreme Court further held that Daubert applies to all expert testimony, not just scientific testimony, and that trial courts should consider each of the Daubert factors "where they are reasonable measures of the reliability of expert testimony."³⁷⁹

In United States v. Wilson, the Fourth Circuit addressed expert opinion testimony that is based on experience rather than science.³⁸⁰ The court concluded:

Experiential expert testimony, on the other hand, does not rely on anything like a scientific method.... But this does not lead to a conclusion that experience alone — or experience in conjunction with other knowledge, skill, training or education — may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience.... While a district court's task in examining the reliability of experiential expert testimony is therefore somewhat more opaque, the district court must nonetheless require an experiential witness to explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts.³⁸¹

Many cases have used this standard to permit a forensic accountant who is trained and experienced to testify as an expert on accounting matters.³⁸²

II. How to Win the Battle of the Experts

An expert's believability turns on whether the judge or jury finds that the expert is trustworthy, knowledgeable, competent and likable. All are required. The judge or jury will not believe an expert who is trustworthy, knowledgeable and likeable but incompetent, or who is trustworthy, knowledgeable and competent but not likable.

For some experts, believability just happens. Apparently without effort, they naturally come across as trustworthy, knowledgeable, competent and likable. For others, this does not come so naturally, and they must work at it. By understanding what makes an expert believable, however, every expert can enhance his or her own believability and thereby add value to clients' cases. At the same time, experts must understand that it is their responsibility to be believable and to work on it as necessary.

Both verbal and nonverbal communication influence an expert's believability. Verbal communication is just the words that the expert chooses to use. Everything else — tone, volume and pace of speech, facial expression, gestures and movements — is nonverbal communication. Two-thirds or more of all communication is nonverbal, so let's address that first.

A. Nonverbal Communication

All modes of nonverbal communication influence believability. Perhaps the most important is the expert's projection of self-confidence. This is the assurance that the expert has in his or her knowledge and conclusion.

Generally, the witness that displays the greater self-confidence has the greater believability. But there is an important caution here. First, too much confidence can look more like arrogance. This destroys believability by destroying likability and by making the expert look rigid. Additionally, an expert lacking in confidence displays the cues of nervousness — a quivering or high-pitched voice, rapid speech, vacant or detached expression, withdrawn personal space or a defensive attitude.

A confident-appearing expert may be nervous or anxious, but does not display the cues. This witness is engaged, relaxed, sincere, respectful, comfortable, conversational, empathetic, cooperative and polite. While testifying, he or she also listens, commands expansive personal space, and maintains appropriate and steady eye contact and an open physical attitude. The witness must be patient without appearing condescending or patronizing. Dress is also important; conservative business attire sends the right nonverbal communication.

Let's explore the matter of eye contact a bit further, because it is very powerful in communication. On direct examination, the expert's visual attention on the attorney makes the statement that the attorney and the attorney's questions are important. It enhances the attorney's credibility and authority. The visual connection between the attorney and the expert also demonstrates that they are a team in the courtroom, presenting a united stance.

On cross-examination, a steady eye contact keeps the expert in control. If the attorney glares at the expert to try to intimidate, the expert should simply maintain a steady gaze. Looking away due to intimidation means losing control and assuming a more submissive position in the interaction.

When eye contact is broken because the expert must look at an exhibit, the expert can maintain control and authority by taking the time necessary to review the exhibit. The expert should not rush this in an effort to be polite, but neither should the expert take so long that the judge or jury becomes impatient.

B. Verbal Communication

The expert has complete control over the words used to answer questions while testifying. One of the goals of preparation is to help the expert choose appropriate language. The believable expert uses formal speech, rather than either informal speech or hypercorrect speech. Formal speech uses easily understandable vocabulary and people's names. Hypercorrect speech refers to people impersonally (e.g., "the client"), and uses technical and pedantic language.

The believable expert understands how to meet the challenge of turning complex information and its technical terms into easily understandable pieces of information that make sense to the judge or jury. The believable expert speaks directly in response to questions, without waffling and without sounding blunt.

C. The Balance Between Objectivity and Advocacy

According to a survey of federal judges, the biggest issue with the credibility of experts is that they abandon objectivity and become advocates for the side that hired them.

Here's the problem. On the one hand, an expert must testify objectively and without appearing to be an advocate. On the other hand, it is most important that the expert communicate his or her own belief in the methods used and the conclusions reached because ultimately...