See if this sounds familiar: You’re in court. Your opposing counsel calls an expert witness to the stand. Presumably this witness has been carefully selected and thoroughly vetted for very precise expertise. If opposing counsel is worth his or her salt, you assume the expert witness has not only the knowledge to make a compelling case, but the communication skills as well.
Examination begins. The witness states his or her name. And then the attorney starts in with the questions.
“And you graduated from x college, with y degree, and have been serving in z capacity for the last however many years, correct?”
“Yes.”
“Would you say that the evidence you interpreted points to xyz conclusions?”
“Correct.”
“Is it true that, based on your expertise, this is the very specific version of the truth that we should all believe?”
“Yes.”
Ok, perhaps the last one may be a bit of a stretch. But the practice of leading the witness is something we see every day. It’s perfectly legal in most cases, or at least not enforced. It’s also understandable. As attorneys, we want our expert witnesses to say certain things in certain ways. We want to control the narrative. We want to make sure that the important points are emphasized, that potentially conflicting information is addressed properly (or not at all), and that the expert witness uses language that the judge and/or jury can understand and relate to.
The problem is that leading the witness completely undermines his or her credibility, and potentially your case.
A recent Lexology article tackles this topic well. The author offers a nice list of open-ended questions to ask witnesses instead of pigeon-holing them into one word answers, as well as three good reasons not to lead your expert witnesses, which I’ll paraphrase here:
- Your witness seems biased. When you put words in the witness’s mouth, you lose the sense that your expert is a neutral party there to present the facts, not make your case.
- Your witness “phones it in.” If your expert is only required and expected to sit there and agree with you, he or she is not operating at top capacity. This is less than ideal for your examination, but could be truly damaging if opposing counsel pursues more challenging lines of questioning.
- Your witness can’t convey his or her expertise. Expert witnesses are at their most compelling when they are teaching the judge or jury something relevant in an interesting and approachable way. To do so, they need to use their own language and experience. Only then will the witness engage both emotionally and intellectually in the courtroom.
The Lexology article wholeheartedly recommends not leading your witnesses, but allowing them to communicate in their own way. I certainly couldn’t agree more. The author also suggests running some live practice sessions with your experts prior to trial in order to alleviate any concerns about what your witness will say on the stand. This is also a great idea.
The article stops short, however, of the next obvious conclusion: choose the right expert witnesses. It is so important to be able to trust your experts, with or without a few hours of practice. That trust begins with the confidence that you’ve found the best expert for your case. When you know that your witness is knowledgeable, articulate, personable, and reliable, it’s easy to ask the right questions – no leading required.