I was at the courthouse killing time between hearings. I stuck my head in to watch a friend’s trial. Opposing counsel had just called his “expert” witnesses. What I watched next was painful.
For the next hour or so, the attorney asked the expert a question and the expert answered. At first, this expert was good and obviously knew his stuff. But after the first 10 minutes everything started to fall apart. And here’s why…
There is nothing, and I mean nothing, more boring and ineffective during trial than to listen to an expert talk, in a monotone voice, to a jury for an hour straight. Remember how you use to feel in college or law school when some self-centered high browed professor would talk non-stop during class or lecture? Remember how you couldn’t wait to get out of the room?
Well, guess what. A jury feels the same way when listening to expert testimony. If not done correctly, it’s ineffective, a waste of your client’s money, and probably also a waste of your time.
The ineffective expert testimony I watched wasn’t the expert’s fault. He didn’t know any better. But it was the trial lawyers fault for not getting him ready to offer effective testimony. With a little tweaking, this expert could have really helped the defendant’s case. Instead, I think he ended up flushing it down the toilet.
Now here’s a little tip that can make an otherwise boring expert effective and entertaining during direct examination. Modify it slightly and you can also use this approach with most lay witnesses.
Shake things up every 5-8 minutes by using exhibits, charts, and photographs
Plan your direct examination so that every 5-8 minutes, your witness will use a photograph, chart or exhibit to help explain his testimony. Specifically design your direct so that your expert can get up and walk over to a chart and continue with answering your questions while pointing to or describing items on the diagram. After a couple of minutes, have your expert walk back to witness stand.
Ask questions during direct that require the expert to handle a model or exhibit and physically show the jury what he’s talking about. Have the expert use overheads and blowups to restate, in a slightly different fashion, important facts or issues he earlier testified to from the witness stand.
Discuss the above approach with your expert before trial. Most experts will quickly appreciate the fact that you are trying to make them look better to the jury. My experience has shown that they’ll understand your goal and eagerly look forward to helping any way they can.
Then, when it’s time for direct, engage your expert and complement his testimony by having him directly interact with the evidence and indirectly, interact with your jury.
Do this and at the end of next expert direct examination, not only will you have shared all your expert’s opinions with the jury, but you’ll have done so in a way that will have captured their attention and hammered home your issues.