Chapter 14: acting as an expert witness.
According to a book that advises federal court juries, an expert witness is defined by the following:
"The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call "expert witnesses." Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state an opinion as to relevant and material matter, in which they profess to be expert, and may also state their reasons for the opinion." (1)
Expert witness testimony is presented to a judge to help in determining and understanding specific evidence. Financial divorce practitioners, certified public accountants, and lawyers are used as experts because they have specialized knowledge that will assist the judge in determining what the evidence is and how to sort through it. The rule states that, if there is scientific, technical, or other specialized knowledge that will assist in understanding the evidence, then the lawyer can call an expert witness who has the requisite knowledge, skill or experience, training, and education to testify.
Consequently, you are valuable to the court as an expert witness because you have that expertise. The judge may know some financial concepts, but as a financial divorce practitioner you have some specialized knowledge that the judge lacks.
First, you will be qualified as an expert witness--that is, your curriculum vitae will be presented and there may be voir dire (see below). Your curriculum vitae or resume lists your credentials that show you are qualified as an expert in the area of the financial issues in divorce. Your curriculum vitae should show the following information:
* Current position
* Education and training
* Work history relating to financial planning
* Details of continuing education
* Publications, including books and articles
* Workshop presentations, lectures, and teaching
* Honors and recognitions
* Expert witness experience
* Anything else related to being an expert in the financial issues in divorce
Until you are called to the stand, you will sit behind the bar that separates the public from the attorneys and clients. Sometimes all witnesses are kept out of the courtroom until they testify. After they testify, witnesses are allowed to stay in the courtroom to hear other testimony, unless there is a chance they would be called back to the stand.
When you are called to the stand, the judge or other court official will have you take an oath that you swear to tell the truth. You will then sit in the box that is usually located to the side of the judge. When answering questions, don't forget that the most important person in the room is the judge. While being asked questions by an attorney it is natural to look at the attorney while answering the question. But remember that the judge is part of this discussion. So turn to the judge every so often while speaking. It is also very possible that the judge will ask you questions.
Typically, there is a court reporter sitting in front of the judge. The job of this person is to record the proceedings (either manually or by recording) and record exhibits that are offered.
QUALIFYING AS AN EXPERT WITNESS
After being sworn in, your client's attorney will start asking questions about your qualifications and go over your curriculum vitae. Sometimes the attorneys agree (stipulate) that you are qualified as an expert and this questioning time is cut short. This is helpful when court dockets are crowded and the judge wants to hear this case as quickly as possible. After the attorney shows that you are qualified, you will be offered to the court as an expert in financial planning.
After you testify to all of your qualifications, the other attorney can challenge you as an expert. You'll be asked questions by the opposing attorney designed to convince the court that you are not an expert (e.g., your qualifications and experience will be questioned). This process is known as voir dire, the purpose of which is to convince the judge that you should be disqualified as an expert. The judge will likely accept you as an expert, saying that consideration will be given to the weight of your report. After you have been qualified as an expert witness, you will go on to the next step of the court process: direct examination.
Your client's attorney will start by asking you what you were asked to do and what your report is about. You might explain that you were asked to look at the financial results for each spouse with respect to the division of property, amount of maintenance, etc.
You should explain that you have produced several scenarios with graphs and spreadsheets that show the financial results of any given settlement. This mainly entails explaining methodology. You will be asked what information was provided to you and what assumptions were made. You will then explain your reports. Do your best to be understandable and interesting. Your presentation must persuade the judge that your conclusions are fair and reasonable.
Sometimes the other attorney will object and say that what you are testifying to is hearsay. Remember, expert witnesses are allowed to rely on hearsay. For example, perhaps you used the number that the business appraiser gave, the information from a vocational expert, or the report from the real estate appraiser. This kind of information is permissible.
Other times the other attorney will object and say that you are speculating and that speculation is not permitted. You can explain that as a financial planner, you make certain assumptions based on historical data. When financial planners work with clients concerning their retirement issues, they make certain assumptions about their current income, expenses, and assets as well as assumptions about future inflation and investment rates. From those assumptions, they have an idea of how much the client can afford to save to meet their future needs. Financial planners know from past performances of certain investment vehicles which ones are conservatively safe and what the yields on those will be. As an expert, you look at financial consequences and alternatives based on assumptions used by the financial planning industry.
Here are some pointers for direct examination:
* Carefully examine your report for errors ahead of time. The best way to find errors is to explain your report to somebody else in great detail.
* Be concise; do not ramble. The judge is very conscious of time constraints and does not want to hear a lot of extra explanation unless you are asked specifically for it.
* Use plain English. When you use jargon or technical terms of art while talking about financial terminology, the judge may not know what you mean.
* Answer all questions verbally. If you nod or shake your head, it cannot be recorded by the court reporter.
* Pick out the weak spots in your report to discuss with your attorney ahead of time. It is better to be questioned about them under direct examination than to wait for the cross-examination.
The purpose of cross-examination is to attack the expert's qualifications, objectivity, methodology, and assumptions. The other client's attorney might also try to show that you have bias toward your client.
During direct examination, you were asked open ended questions--that is, questions that start with "who," "what," "when," "where," "why" and "how." After direct examination, the other party's lawyer gets up to start cross-examination. Now you will be asked what we call leading questions, which are questions that can only be answered "yes," "no," or "I don't know." Sometimes, you will be asked to explain something and then you may go beyond stating simply "yes" or "no."
Many attorneys are not good at cross-examination and ask mostly open-ended questions. Take advantage of this, but remember to answer only what you were asked! Do not take this opportunity to "set the attorney straight" or to explain more than what was asked. This can be a trap and you should be wary.
Pointers for Cross Examination
* If you are asked open-ended questions, answer briefly and do not volunteer information. Limit your answer to the narrow question asked. Then stop talking! Never volunteer information or answers.
* Keep your confidence level up. If you find errors in your work while you are on the stand, remember that you are still a good witness. Everyone makes mistakes. But do not get overconfident either.
* Your entire file is subject to examination by the other attorney so take only essential documents to the witness stand.
* Do not give a legal opinion. Even if asked, do not attempt to answer if you are not an attorney.
* If you do not understand a question, ask to have it repeated. Do not guess if you don't know the answer.
* Do not get defensive or angry. The other attorney is just doing their job for their client. Court is, in some ways, a game. Attorneys may be angry in court and friendly to each other afterwards. In court, they are doing their job by attacking you and you should not take it personally.
* Sometimes you will be asked a question that you know is not a yes or no question. You could say, "That cannot be answered yes or no."
* Do not say phrases such as "I think," "I guess," "I believe," or "I assume." Those words make it sound like you don't know what you talking about.
* If one of the attorneys objects to a question, stay silent. You are not allowed to speak unless asked a question.
* Don't show that you are nervous by tapping your pencil, jiggling in your seat, or other such mannerisms. You may have to admit to something on cross examination that is not in your client's favor, but your job is to tell the truth on the witness stand. That is your entire job.
During cross-examination, you may feel that the attorney has put words in your mouth and you would like the chance to explain what you really meant. Redirect gives you that chance. After cross-examination, your client's attorney has the chance to ask you to explain further any of the questions that he/she feels needs more explanation for the judge.
EXPERT WITNESS SKILLS
Those representing themselves as "expert witnesses" have to bring with them into the courtroom some very important skills. They have to appear to be self-confident, but not arrogant; polite, but not submissive; and well dressed, but not flashy or slick.
Expert witnesses need to speak directly to the point without waffling and without sounding blunt. Good experts can communicate to the court, judge, or jury that they believe in their case and that they are sincere without being perceived as an advocate. One of the most difficult aspects of being an expert witness is to convince the court that one's interpretation is the right one and at the same time project an aura of objectivity and lack of bias.
The good expert comes into the courtroom very well prepared having anticipated and practiced answering the opposition's challenges. Yet, under cross examination, he/she will want to appear spontaneous and unrehearsed.
Good experts are good performers without being theatrical. They keep an eye on the jurors or judge checking out their level of interest. The worst time for experts to testify is after lunch, between the hours of 1:30 and 3:00 p.m. So, if you are going to testify during that time frame talk louder, show an interesting chart or exhibit.
Non-verbal language is powerful because it is the primal language of feelings. Most of the attributes of a good expert witness are nonverbal attributes such as self-confidence, politeness, sincerity, preparedness, awareness, and relaxed excellence.
Open Posture to the Court
The court's perceptions of an expert's honesty, sincerity, self-confidence and leadership are formed by how "open" or "closed" the expert presents himself or herself to them. The expert who exhibits an open attitude will elicit openness from the court, while the expert who closes off from the court will see the same posture mirrored back to him or her.
When the abdomen is exposed people feel unprotected and vulnerable. One sees this behavior in the courtroom when witnesses fold their arms over their chest, wear vests and buttoned jackets, hold papers in front of them, and generally try to cover up the front of their body. These obstructions, however, close them off from the trier of the facts.
The best place for you to place your arms is on the arms of the chair instead of folded over your chest or in your lap. Also, unbutton your suit jacket and avoid stacking papers and/or books in front of you. Keeping an open abdomen is a courageous, receptive posture reflecting self-confidence and sincerity.
You should keep your hands visible. This indicates that you come before the trier of the facts hiding nothing. Let go of a balled fist and show an open palm. The open palm is an especially appropriate expression of cooperation. People use this gesture when they greet each other, shake hands, and ask for understanding. So, use your open palm as an expression of your goodwill.
A frontal orientation, where people face each other squarely, communicates interest in the interaction and a willingness to interact "heart to heart." A sideways orientation, when people literally "turn a cold shoulder" to others, indicates indifference or disinterest. And finally, when people leave the interaction, they literally "turn their back" on it, communicating their lack of interest in the other person.
So, when addressed by the judge, it is preferable to actually turn in the chair in order to give a frontal orientation to answer the judge, instead of simply turning one's head. When the client's attorney addresses their experts, the experts will want to give the same frontal orientation. And even with opposing counsel, a frontal orientation is desirable because it communicates a sense of fairness and cooperation in seeking justice.
Another sign of an open posture is lack of muscle tension. According to research, being relaxed communicates self-confidence and control. When the court looks at you it wants to see self-assurance. After all, the court depends on the expert to be taken through the testimony in an understanding way. If the expert looks worried, he or she doesn't inspire confidence in the court of being in good hands. So "relaxed excellence" is the key to one's authority in the courtroom.
People unconsciously hold a great deal of tension in their face--the forehead, eyebrow, mouth, chin, jaw as well as shoulders, hands and feet. Holding onto tension shuts out other people, because one's energy is being used to hold onto the tension instead of reaching out to touch someone else. Before taking the witness stand you should get the tension out of your face and body. Shake your head, arms, and legs. Alternately tensing and relaxing those parts of your body where the muscles are contracted in a good is a good way to release pent-up energy.
Eye contact is the most powerful communicative tool an expert can bring into the courtroom. Nonverbal communication ("looking gestures") is particularly significant and often identifies the status one has in the courtroom.
Maintaining steady eye contact keeps one in control of the interaction and is especially important for experts. When opposing counsel is glaring at you, trying to intimidate you--by using his or her eyes as a weapon--it is vital that you respond with a steady gaze. If you look away, you have lost control of the interaction and assumed a submissive posture because you can no longer see what counsel might be up to. You become the "observed" one--which is a vulnerable posture to be in--rather than being the one observing. So, experts should return eye contact when being observed.
When an expert has to look at documents or study evidence, he or he will naturally lose the eye contact, putting opposing counsel in visual control. To compensate for losing eye control, the expert will want to turn the interaction into one where the expert makes opposing counsel wait for a response.
Making someone wait is a political act. The person who has to wait is the submissive one; the one who other people wait for, or wait on, is the powerful one. Instead of hurrying through the documents in order "not to keep counsel waiting," the expert witness should do just the opposite (i.e., take his or her good time in going through the papers until counsel begins to get impatient with having to wait). By making counsel wait, the expert is asserting his/her authority in the courtroom. The caveat here is that the expert will not want to take too long because the court (judge) is also waiting.
Rehearse the Rough Spots
When people do not know how to answer a question, their first nonverbal response is to drop their eyes while they think of something appropriate to say. In that split second, when the expert loses eye contact, with the attorney asking questions, they lose their credibility.
When an expert witness drops his/her eyes, opposing counsel will pick up the hesitation like a hound dog picks up a scent and nail the witness to the wall with it. Losing visual control is a certain sign of losing psychological control. If an expert has been maintaining good eye contact, and then suddenly loses it at a particular point in his or her testimony, counsel will know that it is an area to probe.
Consequently, experts should rehearse their answers to those questions that make them feel uneasy so they can deliver their responses while maintaining eye contact. Steadiness is the key here. The worst possible reaction when under assault is to flinch, which indicates that the blow has struck. Instead of allowing the verbal attack to hit its target, the expert witness should respond by maintaining a steady gaze without a moment's hint of vulnerability while silently thinking of a good answer.
Very often the feet express the nervous tension that is not getting out through the mouth and hands. Foot tapping, leg swinging, and toe thumping are common ways that nervous energy comes out in the feet. When testifying in the courtroom, the expert witness should plant his or her feet firmly on the floor. This will keep the expert grounded and communicate to the court that this expert is steady, reliable, and has his or her feet on the ground.
An expert's demeanor should communicate strength of conviction, indicating that the expert is not easily caught off balance. When an expert has both feet on the ground, opposing counsel cannot push him or her over easily, or make the expert lose his or her balance. Sitting with one's legs folded might be comfortable, but it communicates hesitancy, lack of balance, and inability to act. When an expert sits with one foot in the air, he or she does not communicate the same steadiness that sitting with two feet on the ground communicates.
Too much advocacy is death for an expert witness. Rather, an expert has to maintain that fine line between projecting himself or herself as 100% objective in the way the data was analyzed, but also as 100% an advocate in the conclusions reached. With too much objectivity, an expert loses his or her impact. Conversely, with too much advocacy an expert looses his or her credibility. This is indeed a difficult balance to maintain.
Using one's nonverbal communication signals on a conscious level can underline and add emphasis to the verbal message. The direction one leans in communicates one's leanings. Leaning forward communicates advocacy; leaning backward communicates lack of interest; and an upright posture communicates neutrality. When advocating results, successful expert witnesses reach out to their audience by leaning forward, talking at a steady, sure pace, and using gestures to communicate their message more emphatically.
The witness who leans back in his or her chair, wraps his or her feet around the legs of the chair, or holds his or her voice back--speaking softly and ponderously-- imprisons the body's energy and keeps it from reaching the trier of the facts. This kind of witness communicates reservations, skepticism, and passivity. These kinds of postures communicate psychological retreat, aloofness, and arrogance. Unfortunately, these are the kind of experts that put the court to sleep.
An upright posture, where the energy does not move one way or the other, is a neutral position. The head sits straight, the body sits straight, and the hands rest at the side. The overall attitude is one of disinterest. Neutrality is a powerful posture in the courtroom, but difficult to maintain for anyone who has "leanings" one way or the other. The body will want to express its feelings and to restrain that natural reaction demands a concentrated efforts. For example, judges try to stay objective and neutral, but even they give away their biases by the direction in which they lean.
In summary, experts should: lean slightly forward when answering questions and engaging in the interaction; stay in neutral position when explaining procedures, listening and communicating neutrality; and stay back when expressing hesitation and lack of involvement.
Experts should guard their personal space carefully. Opposing counsel might try to invade it by approaching the expert too closely, pointing, interrupting, talking loudly, looking down at you, or staring. The professional expert will be conscious of these kinds of nonverbal assaults and met them forcefully.
If opposing counsel points, stares, yells, or looks down at an expert witness, the appropriate response is to look away--not down, not up, not at friendly counsel, or at the judge--but sideways, away from the assault. A sideways maneuver puts the expert in the position of not looking at the person who is looking at him or her, which is a power position. So the expert will want to assume the superior posture and refuse to acknowledge counsel's aggressiveness. By so doing, the attacks have no target and, consequently, get lost.
When opposing counsel tries to interrupt a witness, the witness should continue talking even if it means talking over counsel's words. A witness must not allow opposing counsel to invade his or her space and take the floor away. If opposing counsel continues to talk over the expert's words, counsel will be perceived as the aggressor, not the witness.
The nonverbal behaviors discussed in this section are designed to help experts perform persuasively, to win the trust and confidence of the court by projecting a style of authority, openness, control, balance, power, and engagement. Nonverbal messages, which are the means by which experts establish rapport with the court, are crucial to getting the verbal messages across. Experts should make sure that when they are in the courtroom they project the style they choose, not merely the one they fall onto.
(1.) 3A Edward J. Deavitt et al., Federal Jury Practice and Instructions: Civil [section]72.08 (4th ed. 1987).