Whether an expert has previously testified in front of a jury or judge isn't as critical an element as is his or her professional experience and credibility. An expert witness not only must be professionally competent; he or she must have a congenial personality. Like it or not, all kinds of dynamics are in play in the courtroom, and only a fraction of them pertain to the actual merits of the case. A judge or jury that doesn't like a witness will develop an unfavorable impression of him or her that could prejudice the whole case. In addition to knowledge and communications skills, which we've already discussed, a judge or jury will home in on a few key thingsand therefore you should as well:
- Humble and earnest demeanor
Let's consider each of these traits in a little more detail.
It's difficult to measure trustworthiness. But it's possible for a potential expert witness to exhibit the impression of trustworthiness. One component of this impression is reputation. For example, your witness might be well known, and therefore a judge or jury might be at ease with taking the expert's testimony at face value.
Extracurricular activities might come into play here. A recognized celebrity, such as a former professional athlete (say, from the Dallas Cowboys or New York Giants) might just be noteworthy enough to be believable, even if this aspect of the person's life is tangential at best to his or her purpose for testifying. Was or is this person an elected official? That could be a plus or a minus, depending on the circumstances. Is he or she well known for volunteer work or philanthropy? If so, work that fact into the biography included in any pre-filed testimony.
It's vital that you understand the importance of working with your lawyer at this phase. A good trial lawyer knows the kinds of traits to present, and may even know the judge personally if the legal action is brought locally. In our experience, it's wise to consider the "home field advantage" when choosing lawyers. Lawyer friends speak of being "home teamed" when having to try a case in a distant jurisdiction, where opposing counsel knows the judge and surroundings better than they do. What's true for lawyers is also true for expert witnesses.
Honesty, Humbleness, and "Open" Demeanor
We place these factors together for a number of reasons. First, it's virtually impossible for you to know absolutely whether a potential witness is honest. As we stated earlier, however, perception is a primary consideration in the courtroom. Being perceived as honest is accomplished in large part by exhibiting attitudes characterized as "humble and earnest."
In general, peoplewhich includes judges and juriesdon't like to feel bombarded by someone's expertise, because that makes them feel less intelligent. Effective witnesses can project expertise and authority on a subject without "showing off" or making their audience feel belittled. Your witness should seem humble and folksy, yet at the same time firm and sure of himself and his conclusions. You should be able to get a sense of his general demeanor during the interview process.
All of the previously mentioned traits contribute to this desirable trait. While any expert's opinions must be reliable, your expert's opinions must also be believable. Any conclusions must be based on generally acceptable standards in the appropriate profession or field. Proof may come from offering up treatises on the subject, publishing articles in trade journals, or the testimony of peers. However, more than simply citing standards, experts must also be able to fill the gaps between the facts they're examining and the resulting conclusions. An expert must be able to explain precisely why, under his or her methodology, an apple is not a pear.
It's not sufficient simply to make the connection, say, between the building damage and the tornado, or a critical data loss with a mishandled backup process. An effective expert witness must be able to show a well-reasoned basis for making that connection. If the expert is unable to prove that his theory is accepted in the field, or if he is unable to connect the given facts with his conclusion through common-sense reasoning, the judge may not even permit your expert to testify.
The expert should be a person who is truly able to give the judge or jury a crash course on the subject, in an engaging way that holds their attention. The best experts almost consider the courtroom to be their classroom. That's why experts who frequently stump the lecture circuit can be in high demand. These people have the skill to pass along what may be very technical information in common, ordinary, everyday termswithout talking down to their audience. More importantly, they're able to show how an understanding of the subject matter applies to the dispute at hand.