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How to Help Your Expert Maintain Credibility in Court

July 5, 2023
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Your expert’s credibility must withstand scrutiny. We’ve previously discussed what an expert can do to help show their knowledge but they can have all the degrees, publications and talks in the world and still fold under pressure, blowing up your case during deposition or trial. 

Expert Dr. Elliott Fishman recalls remaining assured while having his credentials questioned in court:

I had one recently say I was not an expert in full absorption accounting because it was not in my expert report. There are two different ways of looking at damages, so the opposing counsel tried to impeach my credentials because I had never published a paper in full absorption accounting. I had used some other term that was synonymous with it. You must understand that litigation is a game, and you must put your armor on and not take any of it personally. Always fall back on your credentials and what you have done. That gives you self-confidence.

It’s always good to remember that the audience, the judge and the jury, are made up of people and beyond all the paper credentials your expert can have, there are some that are simply valued more strongly because they are immediately understandable. Attorney Dr. Chris Mammen discusses one such experience: 

We had an expert, and the other side had a technical expert. They both got up on the stand and told their stories about why they were qualified, and the expert on the other side was a very distinguished professor. He got on the stand and talked about all the many dozens of technical articles that he had written, and published, and how many classes he had taught, and so forth. Our expert got up on the stand. He was also very distinguished, with not quite as many published articles, but he said, ‘I helped design the communication system for the Space Shuttle.’ Wow! Just that made him relatable and made the jury perk up. He had their attention and the greater credibility for the rest of the trial. Helping to find experts who not only know their stuff but have that kind of perk helps. Credibility with the jury is key.  

Beyond the actual credentials your expert has, the expert also needs to be fully credentialed for what they are opining on. Expert Kevin Quinley notes:  

Stay in your swim lane, and by swim lane I mean your subject matter expertise because it gets dangerous and does the client no favors, does the law firm no favors, and does you no favors as the credibility for your future engagement if you venture outside an area that is external to your core expertise.

Trying to use your expert outside of their comfort zone often backfires, as does appearing to favor your side blindly. Expert Mike Slinn remembers watching another expert fall apart in court:  

[I remember one case where there was] a highly credentialed person who was a bit outside their field, but their credentials were truly impressive, and they were just there to act as a mouthpiece for their client. They did not have an original thought and they did not have an opinion because they were not that qualified. They were just there parroting whatever they were supposed to. So, it is easy when you see this happening to present an alternative independently and to be demonstrably transparent. The other guy’s credibility was blown to pieces and that is why I think we had a big advantage there in the deposition. […] He kept on and did not waver. Every rebuttal he would put forward was just a restatement of his opinion without basis, whereas I had a reason, explained how I got there, what the line of reasoning was, and the facts they started from. It was defensible. Nothing he said was defensible. 

Attorney Kirk Watkins considers experts who stay true to themselves during testimony an asset: 

I have often found that an expert who does not deliver 100% of the opinions that you want, but delivers the opinions that he does with complete sincerity and answers your opponent’s questions in a straightforward and informative way, even when the answers are not helpful to your case, turns out to be the best kind of witness you can have. He is believed by the jury and as long as, on balance, he’s on your side, that weighs heavily. On the other hand, an expert who is clearly an advocate, who fights with the attorney that is questioning him, will not give a response that is going to be negative to the person that retained him, even though he knows he would have to if he answered the question, that does not turn out well.

Expert Robert Sherwood notes that in his experience, the attorneys he has worked with have been fantastic about clearing up issues that arise during questioning. After all, the expert witness is there to neutrally explain an aspect of the matter based on their experience. An attorney is there as the client’s advocate:  

Sometimes an expert gets asked a question on the witness stand under oath. The witness knows what he will reply. He must be truthful, but he is damaging to his client. What should he do? He can trust that his lawyer during cross-examination will clear that up. Experts I have talked to say, ‘What do I do? I am going to have to say something negative.’ I said, ‘Do not worry about it. What you need to do is answer truthfully. A lawyer will come back to you and ask you to explain it but do not explain it yourself. Then act like, ‘Oh gosh, I just said something negative about my client. I better clear it up by now by saying something positive.’ That is not what an expert should do. One of the first rules […] is you always tell the truth. I find that experts think about that but get nervous. I have learned that focusing on that makes you less nervous. When I go on a witness stand, I do not have to worry about anything if I know the answer. If I do not know, I do not say ‘I do not know’ because I can trust my lawyer to ask me questions. The lawyer’s job is the proponent of the client; the expert is not. If you will, I am their proponent of truthfulness, so be truthful and let your lawyer advocate for your client. 

Lastly, as part of preparation, an attorney should train the expert to listen to the court. Sherwood recalls another incident where an expert shot themselves in the foot and lost credibility with the jury by not following directions in court: 

I have a recent trial incident I think is beneficial for experts to hear. I am testifying at a trial, and there was another expert. This other expert, let’s call him Jack, is on the witness stand. His attorney is asking Jack questions. The questions the attorney is asking him are binary-type questions. He wants the witness to say yes or no. This witness is a knowledgeable person who has written a couple of books. He is a professorial, Santa Claus-looking, guy. Every time he got a question, he could not stop talking. The judge started admonishing him, and he would say, ‘Jack, just answer the lawyer’s question. Do not go on like you are having an epiphany or something.’ He just kept doing it and got admonished maybe four or five times, which caused him to lose all credibility with the jury. I almost learned that the hard way. When you are in a trial, and your lawyer asks you questions, you do not have to guess what he wants. Just answer the questions. He knows what he wants and will get you there. 

Round Table Group is pleased to find you experts with the credentials you need. 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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