An Expert Witness Guide to Demeanor in the Courtroom
By Noah Bolmer
The way in which expert witnesses present themselves in court directly impacts their perceived credibility by attorneys, juries, and judges. Take body language, appearance, and manner of speech into consideration to connect with, and impress audiences.
The Psychology of Demeanor
It is inherent human nature to place value in the mien of others. The perception of subject-matter credibility is subtly influenced by several non-verbal factors, according to psychologist Dr. Nathaniel Herr:
[S]ome of the fundamental research in my field can be applied [to] how an expert witness can present themselves in ways that make their message more—or unfortunately less—palatable to a jury, to a judge or other interested parties who are observing them. You know nothing about the actual value of the content they are delivering, but just highlighting the way that the content is delivered, the demeanor, the emotions that are displayed, and the facial expressions; those things do matter and can convince someone who is not an expert. [. . .] [M]any times these other types of factors play a role. How someone carries themselves, so they look like an expert and act like an expert, but [if] they seem over-emotional, or knocked off balance by a cross-examination, those types of things will affect the perception of the truth or falsehood of their statements.
This extends to a natural phenomenon whereby getting angry may have unintended consequences. Dr. Herr continues, “[Anger] is a reflecting type of emotion. Friendliness breeds friendliness and hostility breeds hostility, so when a witness is angry, they might think that it is something that will show the strength of their argument, but it puts the jury in the mindset of arguing back with that person. Once [witnesses] become argumentative, your mind starts to make the opposite argument or just engage in the fight [. . .] and that is not what I think you would want in an expert witness.”
There are exceptions, however, as Dr. Herr explains “[O]ne instance of anger can be useful, and that is in cases when the expert witnesses are being personally attacked. If the lawyer takes an approach to try to discredit them at a very personal level, then that sort of angry, indignant approach is what people would expect. If you do not do that, it almost can be seen as an acknowledgment of the truth or value of this [attack].”
Attorneys Hire Likeable Experts
Subject matter expertise will get you the call, but likeability and relatability will get you hired. Attorneys evaluate expert witnesses for the way juries and judges will perceive them in court. Attorney Stephen Embry describes the ideal expert witness:
The best experts know what they are talking about. They can communicate it, and they are likable. They are the kind of people I like to use. Is this expert somebody I would like to go to dinner with, not from a personality standpoint, but the desire to be likable, communicative, and empathetic? It comes through in social relationships—with me as the lawyer, and the jury—that this person likes talking to others and doing what they are doing. That is critical.
Expert Ravi Iyer agrees, noting, “Likeability and communication are the two soft sciences. When you interview an expert witness, you want to ensure he has mastered those two sciences perfectly because that is not something you can teach someone. It comes from practice.”
Appearances Matter
Your overall presentation and manner of speech contribute to your demeanor. Expert Lisa Barnes likens court appearances to performances, “You are on stage and have to look good. You have to know what to wear. [. . .] Keep your words simple and appeal to people. Know your language and body posture.”
Expert B.J. Hawkins consults for other expert witnesses, noting the importance seemingly minor factors when combined, “I worked with [an] organization on what colors to wear to trials. How to present yourself. What do you do in a hostile environment? Even how you speak correctly to Your Honor, the judge. Oftentimes, it is not the big glaring issues, but the small important factors that distinguish you as an experienced, competent, and capable expert witness.”
As online court appearances become more commonplace, appearances are just as important. Expert Hawkins continues:
[H]ow you appear online is important. [. . .] What is the background [image] on a Zoom or in a CourtConnect call? I have seen attorneys who are on a CourtConnect call, and their background lighting is so bad, you cannot even see their faces. That is extraordinarily distracting for both the judge and the other counsel involved. If you cannot see their lips moving, you cannot see their eyes or their faces. You cannot see whether a person is making a joke or whether they are deadly serious when they are making a statement.
Body Language
Juries are keenly aware of posture, movement, and eye-contact. They may make assumptions about a witness independent of content. Expert Craig Schlumbohm recounts an instance where jurors were swayed by demeanor:
Everybody in the room knew this [witness] was lying because of [their] demeanor. All the signals that you get from a person that is lying [. . .] It came down to reasons other than the words that were spoken. A couple of the jury members had a hard time with that, and it was interesting to be in the room and to hear [the jurors] discussing why they thought a person was a liar. [. . .] Interestingly, little things can be said or done in the courtroom to foster a feeling of untruth. It is hard.
Controlling body language during direct is straightforward, but it is crucial to maintain your outward composure during cross-examination. Attorney Matthew Morr recalls:
[B]ody language is another area people need to consider. One of the best cross-examinations I have ever seen was by my partner [. . .] During the direct examination, the expert witness was sitting with great posture, sure and confident. In his cross-examination, [my partner’s] first two questions were able to impeach him. As the examination went on, the guy’s posture worsened to the point that by the end of the examination, he was practically hiding behind the witness stand. The jury is only seeing his eyes at the top of his head. He is not looking anybody in the eye, and there was nothing that could be done on redirect because the guy’s body language told the story.
Expert Dr. Eric Cole agrees, suggesting mock cross-examinations to simulate courtroom pressure:
To me, the most significant thing I found, which is easy to say, but hard to do when you are in the courtroom, is you want to control the tone, voice, and pace you are using during your direct to be the same as it is for the cross. [. . .] With the jury, it is not what you say but how you react. [. . .] The mock cross is much more about me being able to keep the same tone and practicing keeping the same expressions and the same answers, and the same body language as opposed to what they ask in the mock. That is why I like the mock. Essentially, I joke I want somebody to be aggressive and yell at me, and I want to stay calm, cool, and collected. To me, it is more the practice of delivery than what you have to say.
Interact with the Jury
One of the best ways to maintain a positive connection with the jury is to communicate directly, and with dynamism. Expert John Hughett recommends working up-close, advising, “Another little trick that I use, is to try to get out of the witness box and get right in front of the jury. If I have a demonstration on a table in front of the jury, a couple of feet from them, I can look them in the eye [. . .] I can point out the different pieces and why something is one way or not another. That works well.”
Professor Gil Fried focuses on the most engaged jurors, noting, “One thing that I try to do during a trial is look at the jurors. [. . .] if I’m getting that ‘yes’, I’m going to key in on two or three jurors [where] I’m getting the head nods. And you know that they’re rapt to what I’m saying and then I’m just going to plug away at them [. . .] because they seem to connect.”
Levity in Court: No Joking Matter
There are differing opinions on whether levity has a place in court, and even those who believe it has a place concede it is situational. Court should be approached with appropriate humility and gravitas, but some experts use occasional levity to lighten the mood.
Attorney Kirk Watkins recalls a situation where he used levity to turn a slip-up into an opportunity to humanize himself before the jury:
I was using Trial Director and my scanning device that scanned the barcodes to bring up the exhibits was not working, so I was relating to [an associate] the exhibit numbers I needed her to pull up on the screen for me [but] I was making a few errors and giving her the wrong exhibit numbers[. . .] After I had done that three times, I apologized to the jury and told them that it was my fault, [not] the fault of “my help”. The judge rightfully tuned in right away to my use of the term “my help,” [. . .] I had not been thinking [about it] in that way, and suddenly, [the judge] said, “What did you say, Mr. Watkins?” I played it back in my head, realized the gravity of my error and I saw that the jury realized it as well.
My opposing counsel was laughing uproariously, and I decided I needed to do something. The only thing I could think of was to go over and get down on one knee in front of my associate and apologize. [She] played it perfectly. She crossed her arms, looked down her nose at me, and then accepted my apology. The jury actually clapped. [. . .] In most of my cases, if allowed, I interview or have a third party interview the jurors after the case. One of the juror’s comments was that when she saw me go down on my knee, she realized I was a real person. I felt that was a big compliment that I had, unfortunately, had to earn in that case.
Professor Michael Risch uses it sparingly, remarking, “Levity is okay when I testify, and I’ve tried to inject it. Small jokes here and there; I try and do more self-effacing—but not so self-effacing that it diminishes my expertise—I think that works best. Levity at the expense of the questioner doesn’t work as well. [. . .] Having it canned doesn’t work. Being able to do it in the moment allows you to have the connection with the fact finder in a way that comes across as being sincere about what you’re doing. That’s the goal.”
Dr. John Steinberg recommends against it, advising, “O]n the stand always maintain a cheerful demeanor. I mean no joking around. You have to be serious, but pleasant. Be civil.”
Opinions delivered by experts who display confident body language, interact with juries, and maintain a likeable aspect are compelling and effective. Engaging attorneys seek experts who are as relatable as they are knowledgeable.
If this sounds interesting to you and you want to explore becoming an expert witness, consider signing up with Round Table Group. For 30 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Contact us at 202-908-4500 for more information or apply to join our network!