Handling Questioning as an Expert Witness

As a testifying witness, you can expect to receive some confrontational questions from opposing counsel while on the stand. When the time comes, it may feel difficult to answer these questions while keeping your cool. How can you best remain professional while effectively defending your position? We’ve outlined some tips from seasoned expert witnesses below.

Collaboration and Preparation

Even though you’ll take the stand alone, each engagement you participate in as an expert witness should be a collaborative effort. In a recent GLG-hosted panel with three tenured expert witnesses, GLG Network Member Fil Waters recommended establishing ground rules and expectations up front with the attorneys on your team. Regardless of your experience, collaboration and communication are essential to understanding the context of the case and your expectations going into a deposition or trial.

Use your preparation time to coordinate your approach with your counsel and prepare to take the stand. Are you relaying the pertinent information without rambling? Can you field more antagonistic questioning while maintaining composure? Excelling in depositions and trials is a skill that is best honed through practice and preparation.

Work with your legal team to counter the strategies that opposing counsel often employs. Collaboration is as much for their benefit as your own. Your collective work will serve to solidify the team’s argument and case in court.

Depositions: Active Listening, Specific Answers

Testifying at a deposition is typically less structured than appearing at trial. Generally speaking, the rules around questioning are looser. This means when you take the stand, opposing counsel might try to disarm you and derail your train of thought. During the deposition, you’ll likely be asked open-ended questions. These may take your answer beyond the scope of the original question.

This is perfectly normal and understandable.

After all, you’re a subject matter expert and thought leader in your field who likely has much to say. It is important to remember that your role is that of an expert witness, and as such, to be mindful and rein in your answers.

To avoid losing yourself in the opposing side’s line of questioning, first listen to each question and answer it directly. If you remain focused on the question at hand, you can reduce the likelihood of changing an answer or incorrectly explaining your position. Also, answer only the questions the attorneys directly ask you. It is the job of the counsel to redirect and ask for clarification — don’t elaborate on a related topic unless asked.

Many attorneys will demonstrate this with a seemingly innocent question during deposition preparation — they will ask you if you know what time it is. Naturally, most experts will look at their watch and tell the attorney the current time. The attorney will then remind them that the question was “Do you know what time it is?” You were not asked to “please tell me the current time.” Keep this in mind as you prepare for open-ended deposition questions — answer only what is asked, no more.

If you need to, Fil Waters told us, take a breath and take your time before answering — this not only allows you to better collect your thoughts and produce a well-formed response, but it also gives your team the chance to object to a question. When you’ve taken the time to reflect, your answers will be more concise.

Trials: Credibility Is Key

Unlike depositions, a judge (and sometimes a jury) will be present at trial. If you’re tapped to testify, it’s your job not only to express your opinion but also to establish yourself as a credible figure in your field. Below are a few considerations to keep in mind when speaking to a larger, in-person audience.

Measure the Judge (and Jury)

Pay attention to the way you present your answers to the court as much as the answers themselves. You should formulate your answers with your audience in mind. Ask yourself:

• Who is my audience?
  Tailoring your approach based on the finder of fact in your case helps you deliver your message more effectively. Sometimes a judge will be your audience, and they may even engage with you directly. Sometimes a jury of laypeople will be there to hear your responses. Discuss these details with your trial team beforehand to coordinate on the best approach, given the specific audience.

• Will my reaction, correction, or argument about my subject area impact my image in the eyes of the finder of fact?
  Opposing counsel may try to bait you into losing your cool, correcting them, or even arguing with them in open court about matters you know more about than they do. The temptation to set the record straight, especially about your area of expertise, is understandable. However, if you do so in the wrong way, you may lose credibility with your audience. If you prove your point but lose the respect of the finder of fact in the process, it is at best a pyrrhic victory.

Stay Calm When Your Integrity Is Questioned

As an expert witness, attorneys will also sometimes attempt to discredit your testimony by attacking your personal integrity. Before defending yourself, remember that they’re trying to elicit an emotional or angry reaction from you.

Avoid giving them what they want by remaining collected when defending yourself against their claims. Address their attempts to discredit you, when called for, and calmly speak without getting emotional. Doing so will bolster your own reputation in front of the court and avoid playing into their hand.

Positioning yourself as a credible expert witness is as much about your demeanor as it is about your knowledge of the subject matter.

Ultimately, handling conflict as an expert witness is a difficult task. Garnering the respect of the judge and/or jury while also defending yourself is crucial, but it’s also a precarious balancing act. However, by preparing for questioning, responding with specificity and tact, and maintaining credibility, you can successfully navigate confrontational situations while on the stand.

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