Expert Witnesses
| Author | Peter Lyons |
| Pages | 173-192 |
It has been said that one needs at least 10 years in an area of knowledge or practice before one can truly be said to be an expert. I don’t think Mozart would agree. But remember what the expert is there for: to help the court to make a decision based on technical issues which are outside the ordinary knowledge of the judge.
The best expert is a teacher. In other words, an expert will be of far more assistance to the judge if she teaches the judge about the problem, its extent and its solution. It’s not much different, on its face, to the role played by a good advocate.
However, the expert who strays into advocacy, or arguing his side’s case, will not assist the judge. He will most probably annoy the court.
The role of teacher carries with it a number of techniques. The expert must begin at the level of the judge’s knowledge of the subject. You don’t want the judge thinking, to paraphrase Lord Denning, ‘Well that’s very impressive, he obviously knows a great deal about the subject, but I’m afraid it all went over my head.’
A good teacher begins at the level of the student and, step by step, shows the way, until the student can walk unaided.
The primary duty of the expert is to assist the court and he will do that by helping the decision-maker understand a subject of special skill whether technical, scientific or otherwise.
The best way to do that is to be credible or believable. To that end the expert must be well dressed (in a business suit or equivalent), well prepared and positive.
He must sit or stand with a good upright posture, he must speak directly with just the right amount of eye contact and he must be conversational. He should use analogies and illustrations and vary his tone of voice. Above all, he must be interesting and inject just the right amount of passion into what he says.
He must be prepared to make concessions where appropriate and show the decision-maker that he is fair.
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What he must not do is ramble; hesitate or talk down to the court. He must think before answering the questions. He must not be arrogant or immovable or use technical words which the listeners do not understand. He must not exaggerate or over-sell his position.
1 Direct examination of the expert
The basic skills are the same: you must think of short open questions which are not leading and which comprise simple words.
In preparing for the direct examination you must think about how best your expert will be able to teach the decision-maker.
Most expert testimony is based upon facts. That is why it is important to conduct a proper case analysis, which necessarily includes a persuasive distillation of the facts.
Once you have received the expert’s report, you will have to think of the best way that this expert can teach the decision-maker. Will it be by oral evidence, charts, maps, photographs, videos or physical demonstrations? Or a combination of some or all of them?
If you want your expert to demonstrate something in court, make sure it’s not the first time he does it. The performance should be rehearsed (it should not look rehearsed) and polished.
In some countries you must not coach or rehearse the witness if you are going to be the advocate. See Chapter 8, ‘Preparing Witnesses’.
Remember to appeal to as many of the listener’s senses as you can.
A judge in Indiana told me of a nuisance case she tried. Neighbours complained about the sound and smell of the chicken farm next door. Their lawyers produced a container of chicken poo and invited the jury to smell it. Not an attractive story, but the tactic worked.
Many good lawyers try to get the expert in front of the flip chart or the white board as soon as possible, carrying out calculations or drawing diagrams.
These days they might use a PowerPoint presentation or show a diagram on a screen. You should ensure the equipment will work properly. How many times have you been to an event where there is a glitch with the PowerPoint presentation or the projector?
1.1 Introduction and qualifications
You might want to organise the expert’s evidence into topics. But before you do anything you must establish the expert’s credibility. Why is the expert here? What qualifies him to give evidence to the court or tribunal?
This is the first stage and it is crucial. You first must introduce your expert to the court. Look happy and proud but not smug. This is one of the stars of your show, if not the star. Your demeanour should suggest to the decision-maker that you really think this witness is going to help.
The adoption of this attitude is not easy. There are so many other distractions and things you will be thinking about.
If your expert has a title, you must use it in the introduction. Let us return to the Cavendish v Downham case study in Appendix 1:
Question: ‘You are Professor Christophe Fournier?’
Answer: ‘I am.’
Question: ‘You live at ...’
A good practice is to get the decision-maker interested in why the witness is here. The Americans called it a ‘teaser’ or ‘foreshadowing’ the witness’s evidence. It’s a leading question but it rarely receives an objection:
Question: ‘Professor Fournier. Are you here today to give your opinion as to the genuineness of the sculpture “A Soldier and Two Horses”?’
Answer: ‘Yes I am.’
The next step is to qualify the witness. If you are not careful, this section can become repetitive and boring. You do not want your expert’s qualifications to be boring.
Where is the best place to start?
Well it would be good if you could arrange for your opponent to agree the expert’s qualifications, then you can ask a series of leading questions.
But if that is not forthcoming, you will have to think of the most interesting way of arranging the questions. Do you begin at the very beginning?
‘Where did you go to school?’
That’s a better question than the type lawyers often ask:
‘Where did your education take place?’; or
‘What was your first contact with the educational system?’
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But what about starting at the end?
‘How long have you been the Curator at the Athénée Museum?’
Or even better:
‘What qualifies you to give an expert opinion in this case?’
As in everything in life, it all depends on the context. It also helps if you ask the following sort of question after a witness has stated one of his qualifications.
‘What is it about your PhD that will enable you to assist the court in this case?’; or
‘What is it about your PhD that helped you form your opinions in this case?’
It’s not just his qualifications – it’s also his experience. What are the memorable things that your expert has done? Has he achieved eminence in his field or won awards or written seminal texts?
How should you present these achievements? It’s no use burying them in the middle of his qualifications. Make an impact. Ask him about them early on. Of course, you don’t want him to appear boastful, but he shouldn’t hide his light under a bushel.
1.2 Method
Once the decision-maker is satisfied that the expert is qualified to help, you must ask a series of questions about how the expert reached his conclusion.
What materials was he given? Which facts were presented to him? What were his instructions? Who hired him? What was he told?
This is very important because if his opinion was based on faulty information, it too will be flawed.
The next topic is the method he used.
These are critical questions. You are closing off the avenues of attack your opponent might use.
Your expert’s method must be competent, rigorous and fair. Any departure from these three styles will mean an open goal for the opposing lawyer. Let’s look at Worthington and Fournier from the Cavendish v Downham case study once more.
In short, Worthington is less qualified than Fournier, but he saw the sculpture and examined it. Fournier is the world authority, but he only looked at photographs.
If you are calling Fournier, you have a problem. How do you present that weakness in methodology in its best possible light?
Do you begin with it?
Question: ‘Professor Fournier, what method did you use in forming your opinion about this sculpture?’
Answer: ‘I looked at 10 digital photographs.’
Question: ‘Why?’
Answer: ‘Because it had been destroyed.’
Question: ‘What were you able to see when you looked at the photos?’
Answer: ‘I could clearly see that they were photographs of a bas-relief from the lost Palace of Sennacherib.’
In this way you will get the weakest part of Fournier’s evidence out of the way early. You can then spend more time...
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