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Expert Witness Testimony: Accuracy is Necessary, but Likability is Next Level

May 25, 2023
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There are certain rules you must follow when giving testimony – to tell the truth, to be impartial, to keep to the rules of the court – but it’s important to consider demeanor and delivery as well. And, sometimes, a little levity and civility. 

Being likeable is simply helpful. Dr. Nathaniel Herr, who at the time of our podcast with him had not yet worked as an expert witness but is an expert on psychology and has given much thought to how an expert’s presentation matters, used an anecdote from his time on a jury to illustrate the idea:  

What struck me at the time was that one of the witnesses was accurate and professional but came across as a little grating and nitpicky. He kind of pulled up these big blown-up versions of medical documents and highlighted how the nurses had maybe mislabeled something or written the wrong date on something and moved the location slightly of an injury from one day to the next on a diagram. I think the jurors’ reactions, as we would discuss it later at lunch, was that [the expert] seemed harsh when contrasted with the witness for the other side. They said he was light, funny and kind of loose while seeming to deliver the facts, at least the facts he wanted to highlight. There were times when the lawyer cross-examined [the opposing expert] and tried to rattle him a little and he could make a small joke and move on. He did not seem to get rattled that much. There were times when the jury laughed at something he said. Over five days, it was pretty boring for the jurors. The highlight of the whole thing was this comic relief. There was a little bit of lightness to it. It felt like, ‘Hey, I can pay attention to this.’ […] Maybe there were viable facts on both sides, but the jury ended up leaning toward [the opposing expert’s] argument and awarded a very small amount of money compared to what was being asked for. I think much of it had to do with the demeanor of the expert witness […] as much as the facts the expert witness was presenting. 

Sometimes keeping things light helps to take a difficult question and turn it around. Expert Dr. John Steinberg recalls one particular testifying experience:  

I was testifying in a workers compensation case in a rural area of Maryland (we call it our lower Eastern Shore) and I am the big city assistant professor from the medical school. A guy was suing his employer. He was drinking beer and smoking marijuana when he drove the company truck off the road and got injured. He wanted a workman’s compensation claim. His blood alcohol level was .22. He was positive for marijuana and beers were rolling around in the truck. He cannot show the work, but he was going to the resort town called Ocean City, MD. This poor attorney decides he wants to impeach, which means to cast doubt upon your testimony or credible answer [such as] when they say, ‘What are you charged?’ or ‘Have you ever been sued?’ No matter how embarrassing the question is, you go over this with your retaining counsel prior and answer truthfully. He says, ‘How much are you being paid for your testimony?’ You answer, ‘I am being compensated for my time’ or, you just say, ‘Yes, I am being compensated for my time.’ ‘How much do you bill?’ At the time it was $300 an hour. He is like, ‘You’re a member, a civil jury not working for $8 an hour. You are a professor from the medical school up in Baltimore, MD and you charge $300.00 an hour?’ And then he says, ‘And you charge that rate from the minute you leave your office to the minute you return.’ I am thinking to myself, who invented what we call portal-to-portal billing? So, I simply said, ‘Yes, sir.’ Then he says, ‘How much longer do you think that will be?’ And I said, ‘Right up until you stop asking me questions.’ And bam! One of the jurors cracked up laughing. The lesson here is whenever they are laughing at your opponent, you have won. I cannot believe he asked that. Even the judge had to stifle a chuckle.  

While keeping things light is good, experts and attorneys should keep in mind that many of them will come across each other multiple times, both in and out of court, so avoid the temptation to make things personal or mean. Expert Kantha Shelke notes:  

[…] When you use the methodology that one is supposed to use, this is the answer you come to, so you are not attacking the expert, but you are attacking the position. The food science and the food technology sector is pretty small all over the world, by the way, and I have worked on all five continents, so I want to be able to go to conferences without having somebody being very hostile towards me. I have testified against a lot of my colleagues, and we are still very good friends. 

As well as meanness, experts need to take care to understand their audience and not take a joke too far. Another anecdote from Dr. John Steinberg illustrates this issue (though during an interview rather than testimony):  

I have only testified on behalf of the government in a criminal matter twice. Once was a medical issue in the State of Maryland, where I worked with the state attorney and the prosecution of a physician. It was a drugs-for-sex case. I have a bizarre sense of humor, I admit it, but the state’s attorney called me up. He said, ‘Dr. Steinberg, would you be willing to testify on behalf of the prosecution against the physician?’ I was raised by lawyers, so I said, ‘What is the physician alleged to have done?’ He said with indignation, ‘He was trading drugs for sex.’ I paused a little bit and said, ‘You mean you cannot do that?’ There was this long silence on the other end of the phone. I could see him thinking ‘What, do they all do this!?’ I said, ‘I am kidding you. I would be willing to look at the file.’ Oh, boy was that a lesson. 

Lastly, an ability to poke fun at yourself can save you if you make an unintentional but grave error. Attorney Kirk Watkins recalls: 

During the case, I was presenting some exhibits to the jury. I was using a trial director and my scanning device that scanned the barcode to bring up the exhibits was not working. So, I was relating to Anna [an associate on the case] the exhibit numbers I needed her to pull up on the screen for me. I was making a few errors and giving her the wrong exhibit numbers. So, there I was in front of the jury, with the wrong exhibit behind me. After I had done that three times, I apologized to the jury and told them that it was my fault. It wasn’t the fault of my help. The judge rightfully tuned in right away to my use of the term ‘my help,’ which was not appropriate terminology to use for anybody working for me. I had not been thinking [about it] in that way, and suddenly, she 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. Anna played it perfectly. She crossed her arms, looked down her nose at me, and then accepted my apology. The jury clapped. That was a situation, and I found this to be the case over the years when you are in the most trouble, you can sometimes make the most headway if you are not so worried about how you appear, your pride, and are willing to take responsibility for your mistakes and do it immediately and spontaneously. The jury recognizes that. 

Everyone can be civil. Everyone can be likeable. Some of us are better with a judicious use of levity than others. Overall, though, remembering that connecting to others in the courtroom will help you get your point across is priceless.  

Let Round Table Group help you connect with the top experts for your matter. For over 25 years, we have helped litigators locate, evaluate, and employ the best and most qualified expert witnesses. Round Table Group is a great complement to any litigator’s quest for an expert witness and our search is always free of charge. Contact us at 202-908-4500 for more information or start your expert search now. 

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