Presentation of evidence is conducted in three possible stages: direct examination of the witness by the presenting attorney, cross-examination by opposing counsel, and re-direct examination by the presenting attorney if he or she chooses. Below are suggestions to help you present testimony:
Good communication skills are critical to effective expert testimony
Listen to the questions. Don't speak before you know what you are going to say. Pauses typically seem longer to the speaker than the audience. Speak clearly in language the average person can understand. Look at the audience - the jury.
Pay attention to details that support credibility
Credibility comes from a combination of factors: appearance, demeanor, attitude, and content, to name a few. Again, basics matter. Dress appropriately. Be respectful to the court. Do not promote an agenda. Too many experts undermine their credibility by wanting to "win" and letting it show. Tell the truth. Stick to your area of expertise. Do not try to "stretch" the facts.
Know the file and the relevant literature
Cross-examination is the aspect of testifying that all expert witnesses fear most because the purpose of cross-examination is to impeach the witness. Unlike in direct examination, leading questions designed to elicit a particular response are allowed in cross-examination. In order to impeach a witness, counsel may try to imply bias. Questions may address whether you are paid and whether you always testify for one side or perspective. Bias may be a significant strategy for witnesses who frequently testify in child abuse cases. Discuss this issue with presenting counsel and be prepared to respond.
Opposing counsel may also impeach the witness by pointing out inconsistent prior statements or inconsistencies in the case record. Proper preparation will limit the effectiveness of this technique. Your opinion may also be challenged by presenting medical literature that, according to counsel, is contradictory. Preparation will help here as well. Be honest, however, if you are unfamiliar with the literature mentioned. A thorough knowledge of the literature will help you indicate that the publication is misrepresented, obscure, or inconsistent with prevailing opinions.
The system is adversarial - do not take it personally
The expert is not there to win, but once you get angry or lose professional demeanor, in a sense you have lost - lost the appearance of professionalism. If you appear calm and professional even while opposing counsel appears to be attacking you, it may even improve the jury's impression of you.
Make sure you understand the question before answering
It is appropriate to indicate that you do not understand a question by politely asking the attorney to repeat it or rephrase it. Regardless of the attorney's response, do not "spar" with the attorney. If multiple questions are asked, you can separate them in the answer. If the attorney asks a yes or no question that cannot be answered by yes or no, say so. If you need to give a complete answer, say so. Even if you are not allowed to do so, it gives counsel the opportunity to consider whether a fuller answer would be helpful through re-direct questions.
Stop and think before answering
This is even more critical upon cross-examination when the questions may be unexpected. It is perfectly appropriate to indicate that you need a moment to consider the response. It only shows that your answer is carefully considered.
If the attorney misquotes a prior statement you have made, correct him or her. If the attorney reads a statement to you from the record or a publication, you have the right to see it before you comment. If a question seems inappropriate, pausing before answering may also give counsel time to object. If an objection is raised, stop testifying until the judge decides on the objection.
Billing for Testimony
As an expert witness, you should expect to be compensated for your time. However, it may be more difficult to get compensation as a fact witness in a trial. In some cases, you may be able to pre-arrange with the local Department of Social Services or the district attorney's office to include testimony as part of a contract with the agencies. That is, for all children who are referred to you specifically for child abuse evaluations, you contract to receive compensation for the entire involvement with the case, including reviews of records and testimony. Some medical providers choose to have an agreement that fees are charged on an hourly basis. Carefully consider the time involved in providing expert opinions and testimony. Billing should reflect a combination of factors including expertise, potential practice income loss, travel time, and courtroom waiting time.
