In chapter 6, “Preparing Expert Witnesses” of Witness Preparation, expert trial consultant Jesse Wilson shares four objectives you need to accomplish when preparing your expert witness.
Four Objectives for Preparing Experts
You and the expert have four important objectives in the process of preparation. These objectives can vary depending on whether the expert is an experienced veteran on the stand or new to the legal system. The expert’s storytelling usually takes place during direct examination at trial. However, during depositions, it is typically best for the expert to give the shortest truthful answers possible.
Objective #1: You Learn the Expert’s Material
The first objective of expert witness preparation—regardless of the expert’s experience level—is for you to become familiar with what the expert has done in reaching their opinion. That is, the expert’s opinions, the expert’s analysis, the evidence that the expert has relied upon, and any other areas of particular concern for the expert. If you don’t understand your expert’s work, you will be at a clear disadvantage when presenting (or defending) the expert. This is underscored by the ATA Airlines v. Federal Express case (ATA Airlines, Inc. v. Fed. Express Corp., 665 F.3d 882 (7th Cir. 2011).), in which the court stated as follows:
If a party’s lawyer cannot understand the testimony of the party’s own expert, the testimony should be withheld from the jury. Evidence unintelligible to the trier or triers of fact has no place in a trial.
You need to have a good enough understanding to craft effective direct examination questions, redirect examination questions, and protect the expert from objectionable or otherwise inappropriate cross-examination.
Objective #2: The Expert Learns Court Processes
The second objective of expert witness preparation—particularly in the case of a less-experienced expert—is that you help the expert learn the court’s processes. It is important that the expert understand the rules and protocols regarding discovery and depositions. Veteran trial experts will typically have this familiarity, even without a preparation meeting, but you will need to brief inexperienced experts. It is always important that you and your expert witness are on the same page.
Objective #3: You Define the Approach to Depositions
A third objective of witness preparation, before their deposition, is to define the appropriate approach to their testimony. A deposition is the opposing counsel’s forum, during which the opposing counsel asks the questions and the expert answers the questions.
The expert’s dilemma (their crossroad) is this:
- “Should I give truthful, clear, complete, and compelling testimony as I would at trial in the courtroom?”
- “Should I respond to opposing counsel’s questions with the shortest truthful answer—and volunteer nothing?”
There are advantages and disadvantages to each approach. The first approach, in which the expert gives trial-style deposition testimony, may make more sense in a case where the expert’s opinions are particularly strong and well founded. The opposing counsel will get to hear the expert’s complete testimony at the deposition, and they may be persuaded by the strength of the testimony to attempt to resolve the case before trial.
When using the second approach, in which the expert responds to the questions with a short but truthful answer, the expert doesn’t educate the opposing counsel as easily. The opposing counsel must work harder to get the information they want. The opposing counsel also runs the risk of missing something important if they don’t ask the right questions. Each of these approaches, arguably, has merits. It is important that both you and your expert understand the approach that you want to take and the reasons behind your choice.
Objective #4: Expert Tells a Story
When you present challenges in the form of a story, you wake up your listener and you raise both your and your expert’s credibility level through the roof. Your jurors will have the opportunity to see a real human being in their struggle to reach their opinion. You know that you must be a good storyteller to be effective in the courtroom, to get your message across to your jurors, to win your case. Hopefully, you’ve seen, so far in this book, the real secret sauce for telling your winning story: making the human connection to your listeners.
Expert witnesses often see themselves differently. Expert witnesses can, typically, have a sterile and clinical view of their role in the courtroom, and this view prevents them from using storytelling as a powerful tool when they are on the witness stand.
This limited—and inaccurate—view that experts have of their role puts an additional burden on you in the preparation process. Your big hurdle is to convince the expert that there is a story to tell and that they need to tell that story on the witness stand. Overcoming this hurdle is a challenging, but critical, part of preparing the expert witness.
Typically, the expert understands (or should understand) your theory of the case—your story. That is, how your client was wronged. Your story is presented in the complaint, and it is common for an expert to draw upon the language in the complaint to provide background and the setting for the expert’s work. This is just a simple cut and paste—from the pleadings right into the expert’s report. Using your story positions the expert to appear as an advocate—using the same language that you use to argue the case.
However, your client’s story is not your expert’s story. For your expert to be persuasive or compelling, your expert must find and tell their own story, which is about how they reached their opinion. In preparing your expert, you can help the expert find their story, guide the expert in crafting the story, and coach the expert in delivering their story. But without presenting the problem, you’ve got a dried-up sandwich.
The Expert’s Story Flight Plan
Where can the expert find their own story? The answer is in their own world. Asking the following questions will help you guide the expert to their right story:
- What was the assignment that the trial team hired you to do?
- Which challenges did you anticipate, and which challenges actually happened?
- What is the process that you went through to perform and complete the assignment? (The process should include how you approached and addressed each of your anticipated and unanticipated challenges.)
- What was your “Eureka!” moment? At what point did you find the answer, and what was the experience like?
- What was your conclusion? What is your opinion?
As part of the preparation, direct your expert to describe their experience of the following, in some detail:
- taking on the engagement
- anticipating and encountering the engagement’s challenges
- completing the engagement
- formulating their expert opinions
Ask your expert to describe, in a play-by-play method, the following aspects of their work:
- What is the customary protocol for this process in their field?
- What challenges did they anticipate?
- What procedures did they follow?
- Who did they speak with?
- What questions did they ask?
- What questions did they get answers to?
- What questions were not answered?
- What did they see and experience?
- What evidence did they consider and rely on?
- What methodology did they select for their research?
- What are some alternative methodologies that they did not select, and why?
- What were some of their concerns at the beginning of the process and at the end?
- How did they use the evidence and methodology to formulate their opinions?
- How did they become satisfied with the reasonable certainty of their opinions?
You can guide your expert to relate all of this in the first person (there are numerous examples of the use of first person throughout these chapters). Their story should incorporate human interactions (using proper names), sensory experiences, and decision points that the expert experienced throughout the process. Work with them until they have crafted their story—not the story in the pleadings, not your story, not the client’s story, but the expert’s own story.
To tell a persuasive story, it’s critical that the expert highlight and address the case specific obstacles, conflicts, and struggles that they encountered. Incorporating these challenges into the expert’s story creates the bait that attracts the jurors. If your expert can address the conflicts and struggles that they experienced throughout their engagement—such as obstacles to gaining required evidence, contradictory input from the litigants and counsel, delays, and so on—your expert will add an additional layer of sizzle and pop to their story.
Sizzle and Pop Spell Credibility
Every step of the expert’s involvement in the case—from retention to trial—has a human component that you and your expert should not ignore. The expert who incorporates that human component into trial testimony crafts a story that comes alive. The story includes human thought, the five senses (sight, sound, smell, taste, touch), and emotion (anger, disgust, joy, fear, sadness, when appropriate). This story is much more embraceable, and more persuasive, than the mere relating of facts. In other words, it entails becoming a human being on the witness stand. In the courtroom, credibility is king. Contrary to the popular opinion that an expert needs to be an automaton to create credibility, being a human being and being real creates even greater credibility.
Also, embrace the idea, to the core of your righteous being, that you are talking to people who don’t want to be there.
Keep it interesting!
He who tells the best story wins still rules in the courtroom. But paradoxically, the story will always be more interesting if you remember that the courtroom is less about competitive storytelling than competitive truth telling.
When the story begins, the jurors wake up.
When your expert becomes real, the jurors wake up.
How Did Your Expert Reach Their Opinion?
An expert witness named John David was brought into a case to determine the value of a business. More specifically, he was to determine the value of the shares held by two dissenting shareholders for the purpose of buying out their interests. It was a company that manufactured mobile homes.
In the business valuation profession, John has a protocol that he must follow. What follows are some of the customary procedures that he performs as part of the protocol:
- Review the financial statements.
- Research the industry.
- Interview management.
- Organize and summarize the financial information.
- Look at the interest rates.
- Identify the risk.
- Consider the product life cycle.
- Choose and apply the appropriate valuation approaches and
John can talk through all of that, and he can explain that process on the witness stand. The protocol is so universal that it’s kind of like a checklist. That’s the technical stuff. That’s what he has to do as a valuation expert, to formulate his opinion of the company’s value. All of it is accurate, but it’s about as dry as last week’s bread, and so clinical you want to jump out a window. A giant yawn-fest.
If John is merely accurate and clinical when he gives his testimony from the witness stand, he will put the jurors to sleep. No one will want to eat the pastrami sandwich he’s describing.
He will be much more effective, however, if he delivers his testimony as an engaging story that overcomes the obstacles that John encounters in completing his assignment.
Here is a condensed version of John’s transformation of the story of his case from the dry, factually accurate, and matter-of-fact testimony that he planned to deliver in court into an engaging, compelling, and persuasive story that overcame the landmines of his case.
In his story, the following checklist was incorporated into how he reached his opinion, which would otherwise have been like watching paint dry.
- Present the problem.
- Incorporate your struggle (the crossroad).
- Break down your protocol step-by-step.
- Present the logic.
- Incorporate the human element (five senses combined with the emotional connection).
- Show how you resolved your struggle.
- Diffuse the landmines.
Learn winning insights and practical strategies for successfully preparing witnesses and framing your client and case in Witness Preparation by Jesse Wilson. You can also read more on how Wilson's methods have helped trial lawyers like Randy Rozek obtain an $8.3 million verdict or James Haug obtain a $30 million medical malpractice verdict in recent cases.