The days of Perry Mason and the surprise witness are long gone. Today, more and more litigation centers around expert witness testimony.
"Objection overruled." Slowly all eyes turn toward you. It's time to answer. You, after all, are the expert witness. Despite your sweaty palms and pounding heart, an entire courtroom awaits your answer. Now if only you could remember the question. If only you could remember your name.
Serving as an expert witness can be a nightmare for the unprepared. Doctors, lawyers, C.P.A.'s and mental health professionals all experience anxiety when not fully prepared for the courtroom. The witness stand, however, doesn't have to be a source of fear. The following pages are designed to help demystify the legal process and provide the helpful, necessary tips a professional needs when called to the stand.
Discovery Lately, more and more professionals have been finding themselves involved in litigation as expert witnesses. For some, serving as an expert is a component of their professional practice. For others, it is a means of further assisting a client or patient involved in a legal dispute. Whichever is the case, an understanding of the overall process is critical.
Many first-time expert witnesses tend to think that the litigation process takes place in the courtroom. The reality, however, is that litigation begins months or even years before witnesses take the oath. The first step of this lengthy litigation process is called discovery.
Discovery is a phase of litigation that allows each side to prepare for court by exchanging documents and asking questions of the opposing party and witnesses. Expert witnesses become involved in the discovery process in two ways. First, many experts serve as advisors during discovery to help the attorney ask the right questions and request the appropriate documents. Second, the expert witness is likely to be subjected to a deposition by the opposing attorney. Here, the expert is asked questions, under oath, by the attorney while answers are recorded by a court reporter.
Since depositions are considered "behind the scenes" litigation, the expert is often unaware of this stage until faced with it. It is essential, however, that the expert be well prepared for this part of the process. Since parties oftentimes settle disputes as the strengths and weaknesses of the case become apparent, the deposition is often the single most important aspect of litigation.
As a professional, understanding why lawyers conduct depositions gives you a broader set of defenses and survival skills. As you might guess, the reasons are many. For example, an attorney conducting a deposition is often preparing for trial as well as the future cross examination of the expert. With a deposition the lawyer can quickly determine an expert's opinion as well as the background analysis that led to it. Furthermore, the attorney is also assessing the expert as a trial witness. How will the expert impress the judge or jury? Does he or she present an authoritative opinion or is the presentation evasive? Does the witness become confused when asked about the particulars of a report? Often the deposition is the attorney's first opportunity to assess the trial outcome for the client.
In most situations, the deposition is the first opportunity an attorney has to fully evaluate the issues in the case. Evaluating a dispute and making solid recommendations to the client is difficult when hearing only one side of the story. By hearing the facts from an expert, rather than the client, the attorney is better prepared to advise the client on the probability of a successful outcome. For example, the client in a child custody dispute usually represents a biased view. In this case the deposition of the custody evaluator would offer a clearer picture of the facts and a more realistic prediction of the trial's result.
Depositions are also used for strategic reasons. In a courtroom, deposition testimony may be used to impeach witnesses who have contradicted their prior testimony. Sometimes an ill-prepared expert will say one thing at the deposition and another thing at the trial. The attorney then confronts the witness with inconsistent statements to challenge the validity of the testimony. For this reason an expert witness should review the deposition transcript before trial, especially since several months often pass between the deposition and the trial. Lawyers also use depositions to search for unknown information. The attorney representing a parent in a child custody case, for example, might depose the child's pediatrician in an attempt to discover as much as possible about the child's behavior and relationship with the parents. The hope is to discover a contradiction, evasion or other fact that would help the attorney prove the case.
Expert Participation A question often asked by professionals is, of course, "Do I have to go?" The answer is generally simple. Yes. If a subpoena is duly served upon you according to the North Carolina Rules of Civil Procedure, you are required to appear. The sanctions for noncompliance include contempt of court and fines. In many cases, the attorneys gently request the aid of an expert witness without the need for the mandate of a subpoena. Nevertheless, a party is authorized in most cases to subpoena a witness who has material knowledge of the disputed issues. In such a case, the witness will only be excused if the court deems it appropriate.
The next and often more important question asked by professionals is, "Do I get paid?" The answer to this question is not as simple. Under the North Carolina General Statutes, a witness under subpoena of the court is entitled to a nominal fee of five dollars. However, an expert's fees are paid in the discretion of the trial court. This means the trial judge will decide the appropriateness of the fee and who should pay it based on a variety of factors.
In an equitable distribution case, the judge might consider the reasonableness of the fee based on the time spent valuing the business, the difficulty of the valuation, whether the expert was agreed upon by both parties or whether one spouse hired the expert for the valuation of the business interests. In a child custody evaluation, the fee is often determined before trial so that one or both parents assure the expert that they will pay the bill. In any event, the professional who testifies should assure that fee arrangements have been made before providing expert services. This is generally accomplished before the court appearance by either obtaining a court order providing for payment of fees, or by entering into a fee arrangement with one or both parties.
One final question often asked is, "How long will this take?" Obviously this varies from case to case. There are, however, a few simple ways to minimize the amount of your time required. First, before appearing in court, arrange with counsel to reduce your waiting time. Often a subpoena will direct you to appear on the first day of trial even though your testimony takes place several days later. Just ask the attorney to phone you when you are needed. It's not uncommon for counsel to work with you to avoid protracted delays. In fact, a considerate attorney might even work around your schedule to reduce the disruption to your practice. Put simply, there is no reason to hesitate asking the attorney for help with scheduling.
The Trial Although an overwhelming number of contested disputes are settled before the time of trial, the day will come when you are asked to step up on the stand, take the oath and render your expert opinion. It all begins with the direct examination. Trial attorneys often quip that they win cases on direct examination and lose cases on cross examination. The attorney preparing your direct examination is acutely aware of that adage and will bolster your examination in every way possible. The time spent preparing your testimony with the lawyer will prove enormously helpful when faced with the weight of testifying as an expert.
The first hurdle for any expert witness to overcome is the qualification phase. In this phase, the attorney presents evidence of the witness' professional and educational qualifications prior to the judge hearing an opinion from that expert. Often attorneys will agree before the time of trial to the qualification of an expert.
On the other hand, in a hotly fought child custody case a clinical psychologist's expert qualifications may be disputed if the psychologist lacks detailed child development expertise. Likewise, the impressive qualifications of an experienced business valuation expert may be contested when the court is seeking the expert's valuation of an unusual commercial venture.
The following information is often sought when establishing the qualifications of the expert:
Where did you obtain your professional training? What degrees have you obtained and on what dates? What certifications and licenses do you hold? Are you a member of any professional organizations? How many years of experience do you have in your field? What is your area of practice and degree of specialization? How familiar are you with the major research in your field? Are you a published author in your field? Do you have teaching experience? Have you been an expert witness before? How many similar cases have you been involved in? Once the witness is qualified as an expert, the attorney will proceed to question the expert's opinion and basis for that opinion. At this point, the expert's ability to convey the information in a reasonable and credible fashion is paramount. With that in mind, it helps to follow three simple but critical guidelines.
First, speak clearly and slowly. Anxiety on a courtroom witness stand is normal and expected. That anxiety is lessened when you focus on your word choice and slow down your testimony.
Second, listen to the question carefully and answer only the question put to you. The attorney's job is to ask careful, directed questions. Let the attorney play that role and answer only the question asked. The goal is to present the testimony in an orderly manner so that the judge is better able to understand information. When a witness responds to a question that was not asked it may lead to an objection by the opposing attorney and disrupt the flow of information. Further, the witness may unintentionally provide ammunition for cross examination. Always let the attorney conducting the direct examination orchestrate the flow of information by responding only to the questions presented.
Third, if you don't know the answer to the question, say so. Do not guess. The attorney conducting the examination may be allowed to help you refresh your memory with prior statements or notes. If you make the mistake of guessing and you guess wrong, your credibility evaporates immediately. Instead of benefiting your client or patient, you have become a huge liability. So don't let professional pride force you onto thin ice: the text of prior deposition testimony may come back to haunt you as a contradiction. It should also be noted, of course, that stating you do not remember something when in fact you do is a violation of your oath. Just answer every question truthfully.
Cross Examination Cross examination is the portion of the trial that most expert witnesses dread. But once again a few pointers will provide you with the skills to face even the most talented of litigators.
First, answer fair questions directly and honestly. Not every question is intended to trip up the witness. Some questions are merely laying groundwork for upcoming questions. Also, some questions, especially when posed by an inexperienced cross examiner, are simply off the mark and not calculated to gain anything at all. Remember, few trial attorneys dispute that cross examination is a difficult task. If you decide to answer every simple question by splitting hairs, you may be discrediting your prior testimony without realizing it.
Second, do not argue. This is a trap. The skilled cross examiner will win an argument with a witness. So simply do not participate. Remember to remain calm, composed and focused on the knowledge you possess. If you begin to appear impassioned about the argument, your credibility as an impartial observer or evaluator is diminished. You want to convey that you are someone with information whom the court needs in order to make an accurate decision, not someone who is advocating a position and/or person.
Third, pause before you answer. Often the examiner will attempt to engage the witness in the cadence and rhythm of the questions so that the witness will answer quickly without thoroughly thinking. "You did meet the mother, right? You met with the father too? And you pride yourself on the thoroughness of your custody evaluations, correct?"
If you begin answering the questions even before the examiner has completed the entire question, you know you are caught in the examiner's web. Try to imagine the attorney/witness exchange as a tennis match. Every time a question is served to you, carefully set yourself in position, get your racket in place, your feet in place, your body properly aligned. Then you are prepared to respond. The wonderful distinction between tennis and cross examination is that the courtroom is a much slower place. Take all the time you need, have some water, take a breath; then, when fully prepared, answer the question. As long as you are preparing yourself for your response and thinking completely about the best way to volley the ball back to your cross examiner, you will survive with your testimony and dignity intact.
Conclusion For an expert witness, the courtroom can certainly be an intimidating environment. It can also be an exciting forum in which the witness plays a critical and often pivotal role. Preparation and knowledge are the keys to assuring that your appearance on the stand is an effective one.
~GJC
