Improving Expert Witness Testimony Skills By Cameron Page, J.D. and Amy Phenix, Ph.D

Improving Expert Witness Improving Expert Witness Testimony SkillsTestimony Skills

By Cameron Page, J.D.By Cameron Page, J.D.

and and

Amy Phenix, Ph.D.Amy Phenix, Ph.D.

OverviewOverview

Credentials and CredibilityCredentials and Credibility

DepositionsDepositions

Direct TestimonyDirect Testimony

Cross-examinationCross-examination


Your CV and or WebsiteYour CV and or Website Accuracy-update and proofAccuracy-update and proof Make sure CV and website matchMake sure CV and website match Don’t inflate your experience Don’t inflate your experience Don’t brag (winning cases, national Don’t brag (winning cases, national

expert, etc)expert, etc) Only one CV for all casesOnly one CV for all cases


Everything you do in and out of the Everything you do in and out of the courtroom will affect your credibilitycourtroom will affect your credibility

Be consistent-reports, testimony, Be consistent-reports, testimony, writing and publications, presentationswriting and publications, presentations

Be balanced and objective in opinionsBe balanced and objective in opinions Skeletons in the closetSkeletons in the closet Dress appropriately Dress appropriately

PreparationPreparation

Testimony/deposition agreement for Testimony/deposition agreement for fees, subpoena and schedulingfees, subpoena and scheduling

Trial ready fileTrial ready file Know the report and documents cold- Know the report and documents cold-

identify significant testimony issueidentify significant testimony issue TimelineTimeline Consulting with counsel to develop Consulting with counsel to develop

direct and cross-examination questionsdirect and cross-examination questions Motions in limine Motions in limine


Nature and Purpose of DepositionNature and Purpose of Deposition Reversal of GoalsReversal of Goals

Expert’s RoleExpert’s Role

Opposing Attorney’s RoleOpposing Attorney’s Role

Your Attorney’s RoleYour Attorney’s Role


Typical attorney types and how theyTypical attorney types and how they

help you:help you:

The “Plodder”The “Plodder”

The “Gnat”The “Gnat”

The “Attacker”The “Attacker”


To survive the deposition, you need to:To survive the deposition, you need to: 1) Be as prepared for the deposition as 1) Be as prepared for the deposition as

you will be for the trial; you will be for the trial;2) Remain a calm and active listener;2) Remain a calm and active listener;3) Do not yield to attempts by the 3) Do not yield to attempts by the examiner to recast your opinion;examiner to recast your opinion;4) Testify in a style that is personally 4) Testify in a style that is personally comfortable to you, i.e., be yourselfcomfortable to you, i.e., be yourself

Direct ExaminationDirect Examination

Conducted by attorney who called Conducted by attorney who called you as a witness or retained youyou as a witness or retained you

Carefully crafted questions to elicit Carefully crafted questions to elicit information favorable to his client. information favorable to his client.


Preparation and organizationPreparation and organization Be a great teacher-likable, human, Be a great teacher-likable, human,

honest, entertaining and perkyhonest, entertaining and perky Do not advocateDo not advocate Keep it simpleKeep it simple Summarize what you are going to tell Summarize what you are going to tell

them them


Direct examination questionsDirect examination questions Rehearse the questionsRehearse the questions Don’t read off a scriptDon’t read off a script

Point out problems in the evaluation if Point out problems in the evaluation if anyany

Head off difficult issues in Direct (i.e., Head off difficult issues in Direct (i.e., old age of offender) old age of offender)

Avoid long narratives (jurors have a 30 Avoid long narratives (jurors have a 30 second attention span)second attention span)


Don’t hedge “could, may, I suspect, it Don’t hedge “could, may, I suspect, it seems.” Use confident language “yes, seems.” Use confident language “yes, absolutely, I strongly disagree or agree. ” absolutely, I strongly disagree or agree. ”

Cite psychological/scientific terms simply Cite psychological/scientific terms simply

Use visual aids and move aroundUse visual aids and move around


Use numbered listsUse numbered lists There are two important considerations There are two important considerations

in making this diagnosis, first his history in making this diagnosis, first his history and second his current symptoms and second his current symptoms

Use analogiesUse analogies

Sit forward don’t touch your face, Sit forward don’t touch your face, turn and talk to the jurorsturn and talk to the jurors

Practice Direct ExaminationPractice Direct Examination

EXAMPLE #1: Direct examination on EXAMPLE #1: Direct examination on the use of the Static-99the use of the Static-99

Cross-ExaminationCross-Examination

Opposing attorney asks questionsOpposing attorney asks questions Goals:Goals:

to lessen the impact of testimony you gave to lessen the impact of testimony you gave on direct exam by discrediting/impeach youon direct exam by discrediting/impeach you

Will use you to support her clients positionWill use you to support her clients position

Will directly attack your opinion and Will directly attack your opinion and methodology you used to make your opinionmethodology you used to make your opinion

Effective Cross-ExaminationEffective Cross-Examination

Listen carefullyListen carefully Clarify if you do not understandClarify if you do not understand Admit if you do not know the answerAdmit if you do not know the answer Stay in your area of expertiseStay in your area of expertise Never be defensive, argumentative Never be defensive, argumentative

or arrogentor arrogent You will be asked your feesYou will be asked your fees

Effective Cross-Examination WillEffective Cross-Examination Will

Attack credentials of the expertAttack credentials of the expert Show bias-whore for the Show bias-whore for the

state/defensestate/defense Show unprofessional bias against the Show unprofessional bias against the

offenderoffender Impeach you with prior inconsistent Impeach you with prior inconsistent

statements or opinionsstatements or opinions Get the expert lost in the recordsGet the expert lost in the records

Examples Cross-ExaminationExamples Cross-Examination

Example #1: Paraphilia Not Example #1: Paraphilia Not Otherwise Specified, non-consenting Otherwise Specified, non-consenting personspersons

Offensive Tactics with Opposing Offensive Tactics with Opposing CounselCounsel

Making you defensive or lose your coolMaking you defensive or lose your cool Direct away from your area of expertiseDirect away from your area of expertise Bring back the facts of the caseBring back the facts of the case Break the momentum of opposing Break the momentum of opposing

counselcounsel Review documents carefully before Review documents carefully before

answering.answering. Ask if you do not understand. Ask if you do not understand.


Choose your battles Choose your battles Challenge false statements (Do you Challenge false statements (Do you

agree…yes, yes, no)agree…yes, yes, no) Do not answer compound questionsDo not answer compound questions Answering hypothetical'sAnswering hypothetical's Strike back diplomatically with a light Strike back diplomatically with a light

touch.touch.


Interrupting expert and not let you Interrupting expert and not let you finishfinish

Chip away at your diagnosesChip away at your diagnoses Risk assessment is not a scienceRisk assessment is not a science Getting the expert lost in the dataGetting the expert lost in the data Your did not interview or it was too Your did not interview or it was too

shortshort

Contact InformationContact Information

Amy Phenix, Ph.D.Amy Phenix, Ph.D.P.O Box 325, Cambria, CA. 93428P.O Box 325, Cambria, CA. [email protected]@amyphenix.com

Cameron Page, J.D.Cameron Page, J.D.San Bernardino County District Attorney's San Bernardino County District Attorney's

OfficeOffice412 West Hospitality Lane, Suite 301412 West Hospitality Lane, Suite 301San Bernardino, CA 92415-0023San Bernardino, CA [email protected] [email protected]

Documents

Improving Expert Witness Testimony Skills By Cameron Page, J.D. and Amy Phenix, Ph.D