subject: How Expert Witness Should Respond to Questions That Attempt to Manipulate Them [print this page] How Expert Witness Should Respond to Questions That Attempt to Manipulate Them
Open-ended questions are used to encourage honest expert witnesses to tell more, in simple terms, about topics that are not easily or precisely phrased by opposing counsel. For example:
Q: What did your lawyer tell you to say in response to that question?
Hopefully, you were not actually coached about how to answer a specific question. You will be much better served if you can honestly say:
A: She told me to just tell the truth in response to all questions.
Attorneys occasionally make statements and then ask you to agree or disagree with the statement. occasionally they ask you to give a simple Yes or No answer to a complex question. If you cannot completely agree or disagree with a statement, say so: "I can't agree or disagree completely with that statement." Leave it to the lawyer to decide whether to pursue any extra clarification from you.
Attorneys like to use leading questions, especially with experienced expert witnesses. A favorite is the "Yes/No Deal" question. With this question, the attorney tries to make a deal with you about how you will answer his upcoming questions. It can sound like this:
Q: The jury has been here for a long time and would like to get home as soon as possible. Can you agree to help everyone here by answering my questions with a simple Yes' or No?'
On the surface, it sounds simple and reasonable. However, you will severely hamper your ability to provide efficient answers if you agree. A better response than sure' or yes' that leaves you total flexibility is:
A: As long as it's possible to do so without misleading the jury, I'd be happy to.
Manipulation can also include offhand assumptions. As an industry expert, it is tempting to use your answers to demonstrate your experience of your specialty. An lawyer's question may try to use that inclination by including an assumption about your specialty area. For example, he may say something like:
Q: Given that you know about so-and-so fact' in your industry, please answer the following question.
If you answer the rest of his question, you are essentially agreeing to that fact, and the jury will assume it is true. In fact, however, the so-and-so fact' to which the lawyer is referring may not actually be a fact; it may also be a critical point with which the other side will make a point. Additionally, if you agree that this referenced fact' is valid in your industry, then you will have admitted it is indeed a fact.
Be careful when answering any questions based on assumptions. Do not accept this assumption clause just because the other lawyer says it confidently, unless you know it to be true all the time. You are the expert. You should know if it is 100% true, or only occasionally true.
When lawyers restate one of your earlier answers to a question, they are usually attempting to put words in your mouth. Even if it sounds similar to what you said, the lawyer's words may have a different meaning under the law than your scientifically-based words may have meant to you. Listen extremely closely when an lawyer rephrases something you said. Think about their phraseology in the same precise way you thought about your own previous statement. You want the record to reflect your technical precision. If the lawyer's statement does not correctly and precisely characterize your statement's meaning, just point out the inaccuracy and refer back to your earlier phraseology. Remember that you can ask the court reporter to read back an earlier answer.
