Courtroom Strategies for Expert Witnesses

By Noah Bolmer
 

Whether in a deposition or at trial, expert witnesses will face a barrage of questioning from the opposing counsel, and anxiety is completely normal in such high-pressure situations. Even with significant court exposure, long-time expert witnesses are not immune. Expert Kevin Quinley notes: 

[D]eposition and testimony is an anxiety-producing experience, even if you have done it many times before. If you are not nervous or do not have some anxiety then good for you, but I say everybody has butterflies. The key is to make them fly in formation on game day [. . .] 

Fortunately, you have several tools at your disposal to help ease the pressure. 

Mock Depositions and Cross-Examination 

A mock deposition not only addresses the opposition’s likely questions, but also simulates the pressure of answering them. Not all attorneys use mock depositions, but expert Charles Ehrlich recommends insisting on them: 

You must prepare for a deposition. You have to insist that your lawyers take you through an adverse deposition. “What were the questions that you guys would ask me if I were the opposing witness?” Otherwise, you are just not preparing yourself. 

I was thinking of Tom Brady, a famous football player [. . .] When Tom Brady goes into a game, he does not just read the playbook. He gets in there and they run plays [. . .] That is what a deposition is like sometimes, but it is very hard to get the lawyers to do this. The lawyers will say, “Oh, you have been deposed before. You know what you are saying. Here are the themes that we want to do.” Back in my very early days of practice, we had an expert who was an expert on the issue of water and corrosion of pipes. By the time his deposition was over, he had never heard of pipes, because we had not prepared him for getting beaten up.  

Expert Dr. Eric Cole concurs, emphasizing the utility of cross preparation in maintaining control:

It is interesting because most of the time, I do have to ask for it. Going into a trial, attorneys will always prepare you for your direct, but I often have to ask and be very persistent in preparing for the cross-examination [. . .] Of course, I always read my deposition transcripts, and there is prep work I can do, but I will always push back and say, “Can we please have another attorney do a mock cross to make sure I am ready and consistent?” 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. 

Take Control of the Deposition 

Take the lead during a deposition by considering not only the question asked, but also where the opposing counsel is leading in general. Dr. W. Richard Laton explains: 

[T]ry to think two moves ahead. Think about where the other side may be heading so you can [. . .] guide the topic to where you want it to go, versus being guided to where they want you to go. Every deposition is somewhat different. Some [attorneys] are more combative [while] others are [. . .] trying to become your ‘friend’. As my lawyer pointed out, he is not your friend. 

Expert Michael Primeau agrees, adding clarifying responses as a potential tool: 

I have learned over the years that you never want to follow where the attorney is going, whether that be on direct or cross-examination. You want to answer the question and understand what is being asked.  

Defuse the Situation 

Do not let the opposing counsel elicit an angered or thoughtless response; keep a measured, even tone and make reasoned, truthful replies. Professor John Abraham recommends a simple, yet effective strategy:  

[T]here are some simple strategies if you have an attorney who is asking a convoluted question, trying to get you ruffled, or trying to get you upset. “I disagree” is a simple, diffusing answer for the attorney and the jury, and oftentimes attorneys will try to get you worked up on stuff that doesn’t matter. If you show it does not matter, the jury is going to know it does not matter. At the end of a week-long trial or a two-week trial, what does the jury remember? They remember some of the questions and answers, but they remember your demeanor, your professionalism, and your clarity. Jurors do not like long answers, and they also do not like you not answering questions. I like to give straightforward, honest answers. You can defuse an attorney who is hot under the collar by saying “I disagree” or, “That is not how I would describe it.” There are simple answers that you can give to diffuse tough situations.   

Take Your Time 

Experts are given wide latitude to consider questions and refer to the expert report before answering them. Take this opportunity to slow things down and collect your thoughts. Professor Joseph LaViola notes:  

The key with any deposition (and any lawyer will tell you this is number one) [is] you can take as long as you want to answer the question, which is important because you do not have to answer the question until you feel confident in providing a good answer. You have your report in front of you, and that is your bible, if you will. That is your guidebook and if you stick to your report, there is nothing that [opposing] counsel can do. It is just that sometimes it is hard to stick to that report. One of the things that you do not want to do is get into a back-and-forth with the opposing counsel which could lead you to start saying things that you should not say. It gets you into trouble and I have had my share of conversations with opposing counsel. When I am in a deposition, I want to make sure that I stick with what is in the report. 

 Expert Michael Primeau speaks in a measured manner to keep a slow, even pace: 

[I] try to always intentionally speak slowly; it helps me to think [. . .] you always want to rattle a bunch of stuff off, because you want to [. . .] give them as much meat as you can, but I really try, especially on the stand, to maintain eye contact with the jury and to [. . .] explain clearly and slowly. 

Go to Court 

Besides experience, there is no better way to become comfortable with the process than attending a trial in person, or digitally. Dr. David Bizzak suggests: 

[G]o into a courtroom and watch somebody get tested, so you see the interaction with both attorneys during direct and cross-examination, as well as the interaction with the jury, because the jury is the one making the decision. You cannot just focus on the people asking the question. In my experience, even though I have testified probably 250 times, every time you go you get nervous about it. 

Taking the lead, thinking ahead, and employing diffusing strategies will help you maintain a relaxed, confident demeanor in court. Make the most of your preparation time with mock depositions and examinations for a successful expert witness engagement.  

If you are interested in 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 sign up now!