When an Expert Witness Cannot Mount an Offensive during Trial Testimony, the Best Tactic is a Strong Defense

When an Expert Witness Cannot Mount an Offensive during Trial Testimony

, the Best Tactic is a Strong Defense

I would like to introduce some general approaches to use in responding to all questions.

1. truthful, careful analysis of the evidence, has led you to honest opinions. Your opinions are the cornerstone of your testimony, and they should be easy to state. While you are presenting your opinions, you can support them with references to particular exhibits. Reinforce and clarify your opinions with demonstrative exhibits such as graphs, photographs or models. Do not stretch the truth; your opinions should be based on unbiased appraisal of the evidence.

2. Do not speculate if you do not know the answer. The opposing attorney may ask a range of questions about your professional specialty, the answers to which you do not know. You cannot guess at answers, and you should not try.

3. People realize that nobody knows everything, even experts. If you do not know an answer, simply say so, which is both acceptable and a great response. The opposing attorney has nowhere else to go at this point. You may hear some short lived bluster or expression of incredulity that may make you uncomfortable or even embarrassed because you do not know something. But an "I don't know" answer minimizes the bloodletting. You've simply given him no erroneous answer that he can shred, further calling into question your lack of experience.

4. At times an opposing counsel will surprise you with completely new data. Take extra time to assess exactly what has been introduced before expressing your response. This will give your attorney an opportunity to object to the facts if that is suitable. Otherwise, if you have never seen the new material and are not familiar with it, you should maintain your objectivity and fairness, and appear perfectly willing to think about it. In any event, you should state that you have not had any previous opportunity to evaluate the material.

5. Remember that it should require a startling new discovery to warrant changing your opinions. If the new facts presented is on point to your opinions, you can certainly say that you are willing to think about the data. If you cannot immediately undertake the required analysis while you are on the stand, say so. If you know immediately that the new information would not change your opinion, say so and explain why, given your experience and expertise, this new data can be discounted.

6. The most dangerous position would be if the new facts presented might change your opinion. Be extremely reluctant to change your opinion on the stand. If the new data is totally incontrovertible and presented as factual, you will not be able to do much. On the other hand, hedge your answer if the data presented is only a supposition (remember, listen carefully to the phraseology). Similarly, hedge your answer if the new data is someone else's research that you have not had a chance to review. Short of truly incontrovertible new evidence, you need to maintain your consistency and stick to your expressed opinions.

7. Cross examining attorneys attempt to maintain control by asking you questions that frequently lead you down their chosen path. While yes or no responses can frequently protect you, occasionally a simple yes or no answer is insufficient. At those times, you will need to convey more information to the jury. One way to keep control is to avoid starting an answer with "yes, but..." The cross examining attorney (and sometimes even the judge) can easily cut your answer off the instant he hears the word "but." Technically, you have answered the question with the word "yes," and he can legitimately say thank you' and move on to the next question.

8. When your "yes" answer needs clarification, put your qualifying clause at the beginning of the sentence.

For example:

Q: Isn't it true that if the burglar alarm had been set to ON, then no one could've walked through the front door without setting off the alarm?

A: If power to the system had not been interrupted, and if the alarm circuitry had not malfunctioned, then Yes.'

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