June 19, 2012
Bow ties: The simple solution to expert witness credibility
That's just one of the scintillating nuggets of advice for turning a ho-hum expert into a "great" witness in the latest issue of The Jury Expert, a publication of the American Society of Trial Consultants. Other advice from Doug Carner of Forensic Protection includes instructing the expert to be confident and relaxed and not to be "the hero."
Reading the column made me thankful that the attorneys I work with have more common sense than to focus on the superficial. I would be less than thrilled to have an attorney client making wardrobe recommendations (bow tie or not) or ordering me to just relax.
I don't mean to sound cynical about trial consultants. I'm sure there is a valid place for them in helping prepare witnesses -- especially novitiates -- for trial. But in my opinion, substance is far more important than style. And that's very hard to teach in a simple advice column. So attorneys are better off choosing the right expert in the first place than scrambling to prepare their witness via last-minute wardrobe tips.
Critically, a good expert witness must have legitimate expertise in the topic at hand. Without legitimate expertise, it is hard to be calm and confident. He or she should also be thorough, taking the time to research the issues and understand the specific case facts. And, above all, the witness should convey honesty and humility.
An attorney who has to tell the witness not to play "the hero" has already made a big mistake. That narcissistic expert should have been avoided in the first place. As a colleague once remarked, it helps us to remain humble if we remember that we are just one piece of evidence, like a maggot on a dead body.
Forensic psychologist Stanley Brodsky, a widely published authority on trial consultation, called Carner's wardrobe advice "demeaning." Experts don't need to be told to dress up for court. And although one or two exceptions come to mind, most of us won't feel more comfortable in a bow tie.
Brodsky also objected to Carner's advice that experts should just "stick to the facts." What distinguishes expert testimony from the testimony of lay or fact witnesses, he pointed out, is that experts are supposed to present not just facts but -- that's right -- expert opinions.
In another rebuttal, trial consultant Elaine Lewis said Carner only stated the obvious, without giving any real insights on how to achieve better results. "For example, we are told an expert 'should remain relaxed' but there is no suggestion on how to accomplish this," she noted.
Ellen Finlay, who brings the perspective of a former trial attorney to her trial consultant practice, said much of what looks like poor witness preparation stems from inadequate law school training in how to craft a compelling direct examination. A well-crafted direct examination provides a road map for jurors and witnesses and is the single most effective way to "communicate your story to both the jury and your own witnesses," she coaches.
If I was in the business of advising attorneys on preparing expert witnesses for trial, I would tell them not to scrimp on time. The biggest mistake I see attorneys making is to throw their cases together at the last minute. Attorneys need to fully explain to their experts their theory of the case, their voir dire and direct examination approach, and what to anticipate from cross-examination.
If the expert is left hanging in the wind, the case will suffer, bow tie or not.
Labels: expert witnesses