Improving Expert Witness Testimony Skills

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Improving Expert Witness Testimony Skills

• By Cameron Page, J.D.
• and
• Amy Phenix, Ph.D.

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Overview

• Credentials and Credibility
• Depositions
• Direct Testimony
• Cross-examination

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Credentials and Credibility

• Your CV and or Website
• Accuracy-update and proof
• Make sure CV and website match
• Dont inflate your experience
• Dont brag (winning cases, national expert, etc)
• Only one CV for all cases

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Credentials and Credibility

• Everything you do in and out of the courtroom
  will affect your credibility
• Be consistent-reports, testimony, writing and
  publications, presentations
• Be balanced and objective in opinions
• Skeletons in the closet
• Dress appropriately

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Preparation

• Testimony/deposition agreement for fees, subpoena
  and scheduling
• Trial ready file
• Know the report and documents cold- identify
  significant testimony issue
• Timeline
• Consulting with counsel to develop direct and
  cross-examination questions
• Motions in limine

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Depositions

• Nature and Purpose of Deposition
• Reversal of Goals
• Experts Role
• Opposing Attorneys Role
• Your Attorneys Role

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Depositions

• Typical attorney types and how they
• help you
• The Plodder
• The Gnat
• The Attacker

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Depositions

• To survive the deposition, you need to
• 1) Be as prepared for the deposition as
  you will be for the trial
• 2) Remain a calm and active listener
• 3) Do not yield to attempts by the examiner to
  recast your opinion
• 4) Testify in a style that is personally
  comfortable to you, i.e., be yourself

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Direct Examination

• Conducted by attorney who called you as a witness
  or retained you
• Carefully crafted questions to elicit information
  favorable to his client.

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Direct Examination

• Preparation and organization
• Be a great teacher-likable, human, honest,
  entertaining and perky
• Do not advocate
• Keep it simple
• Summarize what you are going to tell them

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Direct Examination

• Direct examination questions
• Rehearse the questions
• Dont read off a script
• Point out problems in the evaluation if any
• Head off difficult issues in Direct (i.e., old
  age of offender)
• Avoid long narratives (jurors have a 30 second
  attention span)

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Direct Examination

• Dont hedge could, may, I suspect, it seems.
  Use confident language yes, absolutely, I
  strongly disagree or agree.
• Cite psychological/scientific terms simply
• Use visual aids and move around

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Direct Examination

• Use numbered lists
• There are two important considerations in making
  this diagnosis, first his history and second his
  current symptoms
• Use analogies
• Sit forward dont touch your face, turn and talk
  to the jurors

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Practice Direct Examination

• EXAMPLE 1 Direct examination on the use of the
  Static-99

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Cross-Examination

• Opposing attorney asks questions
• Goals
• to lessen the impact of testimony you gave on
  direct exam by discrediting/impeach you
• Will use you to support her clients position
• Will directly attack your opinion and methodology
  you used to make your opinion

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Effective Cross-Examination

• Listen carefully
• Clarify if you do not understand
• Admit if you do not know the answer
• Stay in your area of expertise
• Never be defensive, argumentative or arrogent
• You will be asked your fees

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Effective Cross-Examination Will

• Attack credentials of the expert
• Show bias-whore for the state/defense
• Show unprofessional bias against the offender
• Impeach you with prior inconsistent statements or
  opinions
• Get the expert lost in the records

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Examples Cross-Examination

• Example 1 Paraphilia Not Otherwise Specified,
  non-consenting persons

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Offensive Tactics with Opposing Counsel

• Making you defensive or lose your cool
• Direct away from your area of expertise
• Bring back the facts of the case
• Break the momentum of opposing counsel
• Review documents carefully before answering.
• Ask if you do not understand.

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Offensive Tactics with Opposing Counsel

• Choose your battles
• Challenge false statements (Do you agreeyes,
  yes, no)
• Do not answer compound questions
• Answering hypothetical's
• Strike back diplomatically with a light touch.

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Offensive Tactics with Opposing Counsel

• Interrupting expert and not let you finish
• Chip away at your diagnoses
• Risk assessment is not a science
• Getting the expert lost in the data
• Your did not interview or it was too short

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Contact Information

• Amy Phenix, Ph.D.
• P.O Box 325, Cambria, CA. 93428
• amy_at_amyphenix.com
• Cameron Page, J.D.
• San Bernardino County District Attorney's Office
• 412 West Hospitality Lane, Suite 301
• San Bernardino, CA 92415-0023
• cpage_at_da.sbcounty.gov