Preparing Expert Witnesses – Part III

This article covers answering techniques for direct and cross examination.  As with the other articles in this series, the focus is on experts, but most of the principles apply to fact witnesses as well.

Direct Examination

Control by Counsel

            Prep sessions with the witness should begin with a note from counsel regarding control.  While avoiding the image of a puppet, as described in Part I, counsel must nevertheless control the structure of the examination and flow of information to the jury. 

The puppet image is avoided by means of a simple structure for direct examination that includes a series of closed-ended questions followed by open-ended questions.  The closed-ended questions are set-up questions.  Both question and answer are brief.  The questions are not leading, just short.  This puts the pressure on counsel, where it belongs, to structure the examination in a way that teaches the information at the proper pace, and according to the stepped learning and chunking principles explained in Part II.   Where the witness shines is more in response to the open-ended questions that elicit narrative responses.  The witness should understand, however, that the learning process for the jury, the learning of a “chunk” of information, if you will, involves the question and the answer, not the answer alone.

Shortest Possible Truthful Response

            The witness should be made to understand that, at all times, the guiding principle of an effective answering technique is to provide the shortest possible truthful response.  This is especially true of cross, as you see later, but allows the direct examination attorney the control he or she needs.  It’s a strategy without a down side.  If the witness’s answer is too brief, and especially if it omits important information, the attorney will simply ask another question.

The strategy is especially important during cross-examination.  I teach witnesses that the longer they talk on cross-examination the closer their foot is getting to their mouth.  I also liken the experience to that of a goalie in hockey or soccer.  It’s not the goalie’s job to score points, but to block shots.  Only if the opportunity presents itself for a wide-open shot at the opponent’s goal is offense in order.  That comes rarely in cross, but it does happen.  Making it happen is the goal of “Inviting the Open-Ended Question” discussed later.

The Shoes of the Jurors

For the attorney, remembering that the question itself is integral to the learning process only works when the attorney “wears the jurors’ shoes,” so to speak, and asks the questions the jurors would ask if they could.  In Part I of this series, I mention that one of the problems with expert witnesses is the attorney, not the witness.  Specifically, the problem arises when the attorney gains so much expertise in the subject matter he or she becomes something of an expert.  In trial, this can result in the attorney and witnesses communicating only with each other.  This is why it’s smart to “play dumb.”


            For direct examination, the approach by counsel and witness outlined above, together with the teachings in Parts I and II of this series should be sufficient to produce a successful examination.  Cross-examination is another matter.  Here the witness must understand the most important skill is not speaking, but listening.

            Witnesses understand the importance of listening when they also understand that cross-examination is an attempt by the opposing attorney to testify and to force the witness to concede (or to convince the jury of concessions) to that testimony.  Witnesses should understand that cross-examination questions aren’t really questions so much as they are statements with an interrogatory phrase added to comply with courtroom procedures.  I explain it to witnesses as an attempt to put words in their mouths.  As such, it behooves them to listen to those words.

            One of the teaching tools that seem to work is to sketch out the typical pattern of cross-examination questions.  Similar, in a sense, to direct examination, that pattern begins as a series of short questions designed to elicit agreement.  While the cross-examining attorney would like affirmative responses to all the questions, it is particularly important in that first phase, the setup phase.  The questions (statements) in the setup phase are often undeniably true, leading to a series of agreements from the witness.  Using those agreements, opposing counsel then attempts to construct a conclusion that will seem to the jury to flow logically from the previous agreements.

            One of the biggest problems with expert witnesses is that they tend to be smart—so smart that they think ahead of the attorney to what they think will be the conclusion.  While they may be absolutely correct about the conclusion, their effort causes them to attempt to prevent the attorney from reaching that conclusion, the punch line, if you will.  They do this by disagreeing, even arguing about the veracity or accuracy of the setup questions.  In the vernacular of old western movies, they try to “head them off at the pass.”  

            The not-so-bright witness presents a different problem.  He allows himself to be lulled into a pattern of affirmative responses to straightforward questions and doesn’t hear the zinger at the end.

One Question at a Time

            A key to teaching experts the skills necessary to be effective witnesses is to keep the list of “do’s and don’ts” as short as possible.  On the short list of “dos” is taking cross-exam questions one at a time, regardless of how intelligent or experienced the witness might be – one question at a time and one answer.  As counter-intuitive as it may seem to be, just answer the present question, don’t anticipate the next one.  The logic of this will become apparent. 

            While listening is clearly the most important skill, patience runs a close second.  As a result of analyzing questions and anticipating where a line of questioning is going (or should be going), experts often try to cut to the chase, or as I say, “head them off at the pass.”

I teach witnesses that cross-exam is much like a card game.  The cards are words and if the witness is patient, opposing counsel will eventually have to use the words that tell us what is in his hand.  As a reminder, the attorney is testifying more than he is questioning.  If he keeps the words to himself, he won’t score any points.  Eventually, the attorney will have to show his hand and the witness will have the opportunity to disagree.

Analyzing questions and anticipating a line of questioning often causes the witness to quibble with the setup questions – digging in his heels and disagreeing inappropriately.  This leads to juror impressions of lost objectivity and argumentativeness.  If the effect is severe enough, the cross-examining attorney never has to ask (and risk) the ultimate conclusion.  With the witness having damaged his credibility, the attorney will have already won the battle and won’t have to show his cards.

Qualified Answers

With the goalie image in mind, instead of fighting with opposing counsel on those setup questions, I advise witnesses to offer qualified responses where necessary and, more importantly, truthful.  The qualifier should always precede the answer.  Using an example where a qualified agreement is appropriate, it could read as follows:  “That is generally true, yes,” or “If by ____, you mean ______, then that would be true, yes,” or, leaning more to the negative, “Only in certain circumstances would that be true.”  The rationale for the qualified answer is simple.  Even though the cross-examining attorney is asking for (even demanding) a “yes” or “no” answer, the truthful response may be somewhere in between.

What gives the witness the right to offer a qualified response where a “yes” or “no” was asked for?  As I tell witnesses, they, not the attorneys, or sworn to tell the truth.

This technique is discussed further in the section below, “Inviting the Open-Ended Question,” where it becomes more of an offensive weapon.  Here it is offered simple as a method that allows the witness to answer the question truthfully, but leaving room for clarification later.  Though it may not come out until re-direct, a qualified answer, such as the examples above, may become the reason the witness can truthfully answer “no” to the ultimate conclusion.  The qualified answer also helps friendly counsel write his re-direct questions.  “Dr. Phillips, under cross examination, you said opposing counsel’s statement would only be true ‘under certain circumstances.’  Please explain that to the jury.”  Naturally, if those are not the circumstances, as the witness sees them, at hand, that leads to a new line of questioning.

The Power of the Pause

How does the witness know when to offer a qualified answer?  Only when he has listened very carefully to the question, all the way through, and has not formulated the answer until after the question and after adding a brief pause. 

All questions get the same pause, no matter how easy or straightforward.  This requires discipline, but when it comes to the pause, it is important to treat all questions the same.  If the witness has been listening intently, the brief pause (about a second) is all that is needed to answer the question.  In effect, the witness is processing the following information; 1) “Did I hear that question correctly?” and 2) “If so, what is the answer?”  The pause also serves to allow friendly counsel the opportunity to object, if necessary.

While the process is important for all questions, even the setups, it is vital when responding to the conclusion questions, which, as I mentioned above, are really more statements than questions.  It is easier, and common, for the attorney to slip in a loaded word or phrase, or even twist the statement from one end to the other so that it sounds like he’s headed in one direction at the start, but ends up somewhere else.

Pace Control

            Cross examination is difficult enough at any pace, but the witness needs to understand that opposing counsel knows where he is going.  He has a list of questions.  He wants the pace to be quick.  He wants the witness to answer quickly.  He will frequently cut off the end of an answer to quicken the pace and to make the witness feel he has to answer more quickly in order to get the answer in at all.  A fast pace favors the attorney.

            The pause, together with a slower, more deliberate delivery of the answer, slows the pace in favor of the witness.  For the benefit of the witness, I compare it to a basketball game.  One team likes to play at a fast pace, while the other likes to slow it down.  The problem for the fast team is that you have to possess the ball to determine the pace and the other team possesses it half the time.  When the question has been asked, the witness controls the pace.

Don’t Answer a Better Question Than Was Asked

Another result of experts analyzing questions is a tendency to reconstruct it in a way that makes sense.  This is doing the work of opposing counsel.  Consistent with the recommendation to answer one question at a time is the further recommendation to just answer the question asked.  If the question is so bad it can’t be answered, then that is the answer.  The trade off for being the only one of the two people in the examination under oath to tell the truth is that you get to tell the truth.  That is the job.  The job of the attorney is to ask questions that are unambiguous.  Make the attorney do that job.

Default Responses

            Default responses are a very simple tool to allow the witness to make sure of the answer before giving it.  There are a wide variety of possible default answers, but they all mean about the same thing, the question needs to be repeated or rephrased.

            The default response comes after that brief pause following the question.  If the witness is in doubt about the first question above, “Did I hear that question correctly,” the answer is automatically a default response.  “Would you please repeat the question” is just one of many possible examples.   Another might be, “It depends on what you mean by _____.”  As a cautionary note, this recommendation should not be interpreted to mean a Clinton-like response, “It depends upon what the meaning of the word ‘is’ is.”  That would be argument, a condition these recommendations are intended to prevent.

            The default response prevents the witness from answering bad questions out of a sense of obligation.  It also prevents long, awkward pauses that make the witness look dumfounded when, for example, he might be just trying to make sense of a bad question. 

Here again, the pause is key to the technique.  It trains the witness to listen to the question all the way to the end and not begin formulating the answer during the question.  We know that many attorneys are skilled at flipping the question in midstream.  This technique, which is inseparable from the listening directive, gives the witness a better chance of catching those types of questions.  It also gives the witness another tool to control the pace, which is to slow it down slightly. 

Tone Matters

            In the case of those setup questions, when the attorney is right, he’s right.  I advise the witness to give it to him, but give it to him with that matter-of-fact tone.  The witness is saying “yes,” but effectively telling the jury nothing is happening, no points are being scored.  When the hand is tipped and the conclusion comes out, then it’s time to say “no” and to do so emphatically.  Emphasis is important.  A limp “no” can sound just as much like an admission as a “yes.” 

Inviting the Open-Ended Question

            This is where defense can be turned into offense on cross examination.  During the setup phase, the witness may hear statements to which he cannot entirely agree.  This provides him with a few options, some of which are designed to make the glass half empty.  He can respond, for example, “That statement is only partly true.”  Keeping in mind that the most important people in the courtroom are the jurors, we can ask ourselves, what would be the jurors’ natural reaction to that answer?  The obvious answer is that jurors would likely want the next question to be, “Which part isn’t true?”  That’s not going to make opposing counsel’s top 10 questions list.

            The witness is inviting the open-ended question.  The above is a very subtle invitation.  If the witness chooses, the invitation can be more assertive.  “That statement is only partly true, may I explain?”  The witness is staying out of argument, but is putting the attorney on the horns of a dilemma.  He doesn’t want to ask the open-ended question, but also doesn’t want to risk his credibility with the jury.

            The witness can turn up the heat a little more.  “That statement is only partly true.  I’d like to explain to the jury if I may.”  Almost sickeningly polite, you might say, but effective.  How can opposing counsel resist?  Sooner or later, the witness is going to be given permission to explain his point in cross-exam, often by the judge.  In the alternative, friendly counsel has been taking notes and offers the witness full reign during re-direct, reminding the jury along the way of all the failed attempts by the witness to get opposing counsel to allow the testimony.  Either way the witness wins. 

Of all the techniques taught to expert witnesses regarding cross-examination, I have found this simple recommendation to be the most powerful.  It requires discipline, careful listening and patience, but the rewards are worth it.  The witness is kept out of argument and the offensive potential is considerable.  In effect, it creates that rare open-ice situation that allows the goalie to score points.

Don’t Be Yourself

            I close this article, and this series, with a final admonition.  It stems from a pet peeve of mine, born of experience.  After hours of training witnesses in the principles laid out in this series, I have often heard a client close the session by telling the witness, “just be yourself,” thereby undermining the training itself.

No!  Do not be “yourself,” if by that you mean communicating as you would in everyday life.  The trial examination is a communications process unlike any other.  As with many other communications environments, there are rules and there are effective techniques, and we comply with them when we are in those environments.  We would say that is true of communicating with children.  We who are married know it is true in heated disputes with spouses.  We don’t always comply with the rules, but we usually know when we break them.  It is true in church.  It is true in business meetings.  It is true in courtships (Let’s face it.  If we were “ourselves” during courtship, far fewer marriages would result).  It is true in countless other realms.  If being yourself was enough to make a witness’s experience a successful one, there would be no need for the prep session in the first place.

For more on Taking the Stand – Tips for the Expert Witness, go to the “publications” tab.

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