The Five Traits of a Dangerous Expert Witness
By Steven Babitsky, Esq. and James J. Mangraviti, Jr., Esq.
© SEAK, Inc.
A dangerous expert witness is an expert witness that puts fear into opposing counsel. Opposing lawyers are concerned with the dangerous expert’s expertise, his command of the facts, and his ability to communicate, teach, and persuade the jury. Dangerous experts understand how to defeat opposing counsel’s tactics and are capable of turning the tables on opposing counsel. Opposing lawyers must be very cautious when cross-examining and deposing dangerous expert witnesses.
Dangerous experts are the most sought-after of all expert witnesses. Frequently, the mere disclosure of a dangerous expert to the opposing side can increase the settlement value of a case. Accordingly, dangerous experts are selective on the types of cases they accept and are able to command premium fees.
There are five traits of a dangerous expert witness.
Sophisticated expert witnesses recognize that most of the problems they face during cross-examination are 100% avoidable. Dangerous experts deny opposing counsel ammunition to attack their credentials and credibility. Dangerous experts understand that everything they do in and outside of the courtroom can affect their credibility and are careful to:
● Always tell the truth and call cases as they see them.
● Pay close attention to and personally maintain their C.V.
● Avoid unprofessional or poorly worded marketing activities.
● Not charge too high or too low of a fee.
● Project a confident, competent, professional image.
Dangerous experts work equally hard to deny opposing counsel ammunition to attack their opinions. Techniques to do this include:
● Avoiding cases where the expert is placed on an overly restrictive budget.
● Carefully and confidently stating all opinions and using the proper “magic words” for the jurisdiction in question.
● Not overstating or understating an opinion.
● Checking and rechecking measurements and calculations.
● Corroborating factual assumptions.
● “Leaving No Stone Unturned” and doing the best job possible when forming an opinion.
2. Diligent Preparation
The second trait of a dangerous expert witness is preparation. Simply put, the best experts prepare long and hard before getting on the stand. Dangerous experts prepare diligently and know the case cold. This includes preparing alone and preparing with retaining counsel to go over the expert’s direct testimony and what he expects the expert to be asked during cross. This process should include a vigorous mock cross-examination by retaining counsel. To a large degree, being a dangerous expert is a result of preparation, not inspiration.
3. Persuasion During Direct Examination
Dangerous experts first and foremost are able to persuade the jury. This requires an ability to explain complex ideas in terms that the jury will both understand and be moved by. An expert who can do this is a very valuable resource for a trial attorney. Some techniques dangerous experts use during direct-examination include:
● Using aggressive self-editing and telling the jury what they need to know, not all the expert knows.
● Employing powerful, memorable analogies that relate to concepts the jurors are likely to understand.
● Being careful to use terms the jury understands and explaining all technical terms.
● Getting to the point and giving conclusions first, then explanations.
4. Performance During Cross-Examination
Dangerous experts need to be able to excel during cross-examination. In order to do so the expert must be able to understand the goals of the cross-examining attorney and how the attorney is likely to achieve these goals. For the cross-examining attorney, cross-examination is all about control. Lawyers are taught to tightly control an expert witness, ask only “yes or no” questions, and only ask questions they already know the answer to. Dangerous experts are able to recognize and defeat opposing counsel’s cross-examination tactics. Such tactics include:
● Taking Past Statement Out of Context – which is defeated by being familiar with your past statement and pointing out that counsel is taking it out of context.
● Mischaracterizations in Questions – which is defeated through active listening and by disputing counsel’s characterization.
● Focusing on the Expert’s Failure to Utilize Certain Documents or Information – which is defeated by providing solid reasons why such additional information was not likely to be helpful.
● Pushing the Expert Away from his True Area of Expertise – which is defeated by refusing to take the bait and not testifying outside of your true area of expertise.
5. The Ability to Turn the Tables on Opposing Counsel
Dangerous experts are even able to turn the tables during cross-examination and cause opposing counsel to lose ground. It is a rare expert that is able to do this and attempting to do so can often backfire on the expert. The best experts understand how to turn the tables on opposing counsel, when to do so, and most importantly, when not to do so. Some of the techniques an expert can use to turn the tables on opposing counsel include:
● Using a cross-examination question as an opportunity to repeat and reinforce damaging aspects of the expert’s direct examination testimony.
● Interpreting a “yes or no” question as an open-ended one and providing damaging explanations in response.
● Asking counsel “may I explain?” at the end of a response, thus putting counsel in the no win situation of either letting the expert explain or appearing to hide relevant information from the jury.
● Recognizing and capitalizing on any mistakes counsel makes such as asking an open ended question or asking “why?”
Becoming a dangerous expert witness requires the foresight to anticipate and avoid problems before they arise, a willingness to take the time necessary to do a first class job and thoroughly prepare for testimony, the ability to persuade jurors and make the complex understandable, the skills to recognize and defeat opposing counsel’s tactics, and the knowledge of how and when to turn the tables on opposing counsel. Dangerous experts are the most sought after of all expert witnesses.
About the authors:
Steven Babitsky and James J. Mangraviti, Jr. are both former litigators who have trained thousands of expert witnesses. They are the co-leaders of the annual National Expert Witness Seminar, have co-authored numerous texts on expert witnessing including The A-Z Guide to Expert Witnessing, Cross-Examination: The Comprehensive Guide for Experts, National Guide to Expert Witness Fees and Billing Procedures, Depositions: The Comprehensive Guide for Expert Witnesses, Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies, and The Biggest Mistakes Expert Witnesses Make: And How to Avoid Them and have co-produced several educational DVDs for expert witnesses. Steve and Jim currently serve as principals of SEAK, Inc. a national continuing education firm specializing in training, consulting, and services for expert witnesses of all specialties. For more information please visit www.testifyingtraining.com.