Kelly on Malpractice

Experts are the mother’s milk of successful medical malpractice settlements and verdicts. Naturally, expert witnesses and the attorneys who retain them want to appear confident and credible on the stand.  However, expert witnesses are not necessarily experts at being witnesses.  Witness preparation scholar, Tess Neal, suggests that expertise is situation-specific: an effective expert witness must prepare for the role of expert witness.  Experts who are less credible are obviously less persuasive. This article offers Ms. Neal’s tips and my suggestions for expert witness preparation as a useful tool for effective testimony at trial. These tips can help you pick a better expert or help you prepare him to offer more credible testimony at trial.

One of the most common methods of expert witness preparation is self-preparation.  The goal of expert witness preparation is to assist the expert in delivering the message he or she has to share in an effective manner.  There are three basic components of witness preparation: witness education, attorney education, and modification of testimony delivery.  1. Witness education. This component consists of orienting the witness to the trial process and physical layout of the courtroom in addition to reviewing prior statements and the subject matter of testimony. These are important elements that prevent the witnesses from making contradictory statements and from appearing nervous or uncomfortable on the stand.  Experts should also know what to expect during direct examination.  Attorneys should review the actual statements witnesses have provided in previous statements (e.g., depositions, prior Rule 26 disclosures) to anticipate the questions that may be asked. Witnesses should look for opportunities to view other experts testifying and to habituate to the courtroom atmosphere prior to testifying.  2. Attorney education. This component consists of knowing the strong and weak points of the witness’s testimony and becoming thoroughly familiar with the anticipated testimony to avoid surprises.  Attorneys should learn how the opponent typically examines an expert. Attorneys should also learn how the trial judge handles expert testimony. Some trial judges are very strict (like players) with experts while others are passive (like umpires). There is nothing more embarrassing than an expert chastised by the judge. 3. Modification of testimony delivery. This component may be the most important of the three components. Modification of testimony delivery includes working with witnesses to increase their testimony delivery skills, which includes any witness characteristics or behaviors the court will hear or see.  The witness’s physical appearance, demeanor, pace of speech, and confidence may all be targets for preparation.

Here are some question-answer and non-verbal behavior skills that are fundamental for expert witnesses. When answering questions, expert witnesses should:
(1) always tell the truth,
(2) listen carefully and then pause and take a breath before answering,
(3) only answer the question that is asked,
(4) avoid slang and jargon,
(5) not memorize answers to anticipated questions,
(6) speak loudly and clearly, (7) not argue with opposing counsel about the line of questioning,
(8) understand that it is OK to ask for a question to be repeated or rephrased,
(9) understand that it is necessary to say “no” or “I don’t know” rather than guessing on the witness stand, and
(10) avoid qualifiers (e.g., “I think” or “I guess”) and hesitation words (e.g., “uh” or “um”).

Regarding non-verbal behavior, witnesses should:
(1) maintain good posture,
(2) remember to look at the jury (but not stare) when testifying,
(3) not look to the attorney for answers, and
(4) use a moderate and natural number of mannerisms and gestures. 

Regarding preparation for cross-examination, witnesses should think through the ways in which their credibility could be damaged.  Challenges to the expert’s knowledge, skill, experience, training, and education are likely. If a witness is truly up-to-date and familiar with the state of the field and how the issues of the case are related to their professional expertise, he or she will be substantively prepared to handle cross-examination. Some literature tells us which experts are believable.  Witnesses who testify in a narrative (e.g., descriptive and lengthier answers) style rather than a fragmented style were found to be more dynamic and competent.  Hypercorrect speech (e.g., using words that are more formal than one would otherwise use) when employed by witnesses in testimony led mock jurors to perceive the witness as less competent, intelligent, convincing, and qualified than witnesses who did not use hypercorrect speech. Finally, witnesses were perceived as having more control than attorneys who spoke over them by accident or potentially on purpose during cross examination.  These collective findings suggest that expert witnesses should be prepared to employ more powerful speech, a narrative style of testimony, to avoid hypercorrect speech, and not to worry so much if they are interrupted during testimony.   

Nonverbal cues are an important aspect of communication and may convey more of one’s message than the actual words one uses. Jurors may use information conveyed through nonverbal means (e.g., facial expressions, bodily gestures and posture, eye contact, and vocal cues) to make inferences about a witness’s emotions that impact the way they perceive the witness’s credibility.  Witnesses who maintain eye contact with attorneys and the jury are perceived as more credible than witnesses who do not maintain eye contact. Other research finds that witnesses who lean slightly forward but with a moderately relaxed posture, face in the general direction of their audience, shift their postures relatively infrequently, and use illustrator gestures (e.g., gestures that reinforce a verbal message such as pointing or shaking or nodding one’s head) are linked to more positive evaluations by others.  Expert witnesses should not be defensive or passive when asked intrusive questions, but rather appropriately assertive.  Witnesses with moderate levels of confidence are more credible than experts with “too high” or “too low” confidence.  Experts who were more likeable were perceived as more credible than experts who were less likeable. The likable experts avoid using jargon; they smile when appropriate; they use inclusive terms such as “we” and “us;” and they maintain an open posture. Finally, studies point out 11 witness behaviors that impair credibility: (1) poor posture, (2) fidgeting, (3) expressiveness, (4) gaze, (5) voice quality, (6) response quality, (7) contempt, (8) other individual items, (9) general credibility, (10) confidence, and (11) emotion.  Experts cannot change these intrinsic behaviors anymore than they can change their color. However, these clues will help you spot a poor expert witness (perhaps during a discovery deposition) before you put a disaster on the witness stand.

Experts are indeed the mother’s milk of successful medical malpractice settlements and verdicts. You cannot convince the jury without at least one credible expert on your side. Apply these principles to your expert’s preparation. One credible expert beats three so-so experts.  

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