Expertly prepare your experts with these pointers

BOSTON – Preparing experts as witnesses is always a challenge because they are not always open to advice. They are experts, after all, and experts are accustomed to giving advice, not taking it.

But I have seen some really bad expert testimony in my life (though I flatter myself in believing that most of it came from the opposing defense expert on cross). Here are a few fundamentals to convey to your witnesses so they may be as effective on the stand as they are in their areas of expertise:

1. Listen carefully and think before you answer.

Listening is the single most important thing expert witnesses can do. Tell them to consider the question and avoid knee-jerk responses (though the other extreme — taking long pauses before each response — also is ill-advised).

2. Answer one question at a time.

Far too often, witnesses fail to grasp that a question may not be just one question. Handling a compound question can be tricky. An expert should not try to be a smart aleck — or a lawyer — when responding. If it is a simple statement, the expert can simply break the answer in two: “As to your question about drugs, there were none. As to your question about speeding, the car was going within the speed limit.”

Or: “I’m sorry, but there was more than one question in your statement. Could you restate your question?”

Tell your expert to listen carefully. If he hears only the first or last part of a compound question, he may give incorrect testimony.

3. If important, respond if cut off or interrupted.

Not all interruptions to your expert’s response are egregious; indeed, if the expert remains calm and doesn’t point out the interruption, it can work in your favor by reflecting negatively on the manners of the questioning lawyer.

However, if it’s important, advise your expert to wait until the lawyer has finished, then say, “I’m sorry, but I had not finished answering your last question and would like to finish.” Usually, the judge will help.

4. Don’t guess.

While it is important to never be uncooperative by refusing to acknowledge obvious things, it is equally important not to guess at important matters. If your expert doesn’t know the answer, she should say so. If she knows but can’t remember, she should say, “I can’t recall at this time” or “without refreshing my memory.” If it is outside the expert’s area of expertise, she should say so. If she wasn’t asked to investigate a subject, she should say, “That is not something I was asked to review, and I have not done so.”

As for yes-or-no questions, if they can be answered truthfully, fine. If not, advise answers such as, “I can’t answer truthfully with only a yes or a no,” or, “The way you have stated the question, yes — but only generally; not in this case.”

Paul N. Luvera is the founder of Luvera Law Firm in Seattle. He was elected to the American Trial Lawyers Association Hall of Fame in 2010.