Improving Testimony Skills

BEING YELLED AT?

Made to Look Like a Fool?

Sitting in the Witness Chair? NOT THIS ONE

7 Body of rules and practices by which justice is handed out by the legal system. Body of rules and practices by which justice is handed out by the legal system.  Federal Rules of Civil Procedure (FRCP): governs U.S. district courts.*  Federal Rules of Criminal Procedure.  Federal Rules of Evidence. * Find at Civil Procedure

What Are You? Types of Witnesses

9 Types of Litigation Services Provided by Behavior Analysts Consultant; Consultant; Expert witness; Expert witness; Court-appointed experts and special masters; Court-appointed experts and special masters;

10 Standards of Conduct for Performing Litigation Services Knowledge, skills, experience, training, and education. Knowledge, skills, experience, training, and education. Professional codes of conduct. Professional codes of conduct. Conflicts of interest. Conflicts of interest. Written agreement to perform litigation services. Written agreement to perform litigation services.

11 QUALIFICATIONS NECESSARY TO BE A WITNESS IN ORDER TO BE A WITNESS, A PERSON MUST SATISFY THE FOLLOWING REQUIREMENTS: IN ORDER TO BE A WITNESS, A PERSON MUST SATISFY THE FOLLOWING REQUIREMENTS: REQUIREMENT OF PERSONAL KNOWLEDGE THE WITNESS MUST HAVE SOME PERSONAL KNOWLEDGE OF THE MATTER BEFORE THE COURT REQUIREMENT OF PERSONAL KNOWLEDGE THE WITNESS MUST HAVE SOME PERSONAL KNOWLEDGE OF THE MATTER BEFORE THE COURT REQUIREMENT THAT EVERY WITNESS DECLARE HE WILL TESTIFY TRUTHFULLY MOST WITNESSES WILL TAKE AN OATH SWEARING THAT THEY WILL TELL THE TRUTH REQUIREMENT THAT EVERY WITNESS DECLARE HE WILL TESTIFY TRUTHFULLY MOST WITNESSES WILL TAKE AN OATH SWEARING THAT THEY WILL TELL THE TRUTH REQUIREMENT OF COMPETENCY DEPENDING ON THE WITNESS’ CAPACITY TO OBSERVE, REMEMBER AND NARRATE AS WELL AS AN UNDERSTANDING OF THE DUTY TO TELL THE TRUTH REQUIREMENT OF COMPETENCY DEPENDING ON THE WITNESS’ CAPACITY TO OBSERVE, REMEMBER AND NARRATE AS WELL AS AN UNDERSTANDING OF THE DUTY TO TELL THE TRUTH

12 THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE WITNESSES THE LAW PRESUMES THAT ADULTS ARE COMPETENT THE LAW PRESUMES THAT ADULTS ARE COMPETENT THE COMPETENCY OF A WITNESS MAY BE CHALLENGED, BUT THE OPPOSING ATTORNEY WOULD HAVE THE BURDEN OF SHOWING THAT THE WITNESS LACKED ONE OR MORE OF THE REQUIRED QUALIFICATIONS THE COMPETENCY OF A WITNESS MAY BE CHALLENGED, BUT THE OPPOSING ATTORNEY WOULD HAVE THE BURDEN OF SHOWING THAT THE WITNESS LACKED ONE OR MORE OF THE REQUIRED QUALIFICATIONS COMPETENCY OF WITNESSES CAN RELATE BOTH TO THE ABILITY OF THE WITNESSES TO TESTIFY ABOUT A PARTICULAR EVENT THEY WITNESSED AND ALSO TO CIRCUMSTANCES THAT CAST DOUBT ON THE CREDIBILITY OF THAT TESTIMONY COMPETENCY OF WITNESSES CAN RELATE BOTH TO THE ABILITY OF THE WITNESSES TO TESTIFY ABOUT A PARTICULAR EVENT THEY WITNESSED AND ALSO TO CIRCUMSTANCES THAT CAST DOUBT ON THE CREDIBILITY OF THAT TESTIMONY

13 THE GENERAL PRESUMPTION THAT ADULTS ARE COMPETENT TO BE WITNESSES (Cont.) A WITNESS WILL NOT NORMALLY BE JUDGED INCOMPETENT BASED ON CIRCUMSTANCES THAT AFFECT ONLY THE CREDIBILITY OF THE WITNESS A WITNESS WILL NOT NORMALLY BE JUDGED INCOMPETENT BASED ON CIRCUMSTANCES THAT AFFECT ONLY THE CREDIBILITY OF THE WITNESS IN CASES WHERE THE PROSECUTOR PRESENTS TESTIMONY BY PAID INFORMANTS, THE FACT THAT THE INFORMANT WAS PAID TO TESTIFY DOES NOT USUALLY RENDER THE WITNESS INCOMPETENT IN CASES WHERE THE PROSECUTOR PRESENTS TESTIMONY BY PAID INFORMANTS, THE FACT THAT THE INFORMANT WAS PAID TO TESTIFY DOES NOT USUALLY RENDER THE WITNESS INCOMPETENT THE JURY CAN DECIDE WHAT EFFECT, IF ANY, THE CIRCUMSTANCES SHOULD HAVE ON THE CREDIBILITY OF THE TESTIMONY GIVEN BY THE WITNESS THE JURY CAN DECIDE WHAT EFFECT, IF ANY, THE CIRCUMSTANCES SHOULD HAVE ON THE CREDIBILITY OF THE TESTIMONY GIVEN BY THE WITNESS

14 CHILDREN AS WITNESSES IF A YOUNG CHILD IS CALLED AS A WITNESS, THE TRIAL JUDGE WILL FIRST QUESTION (Questioning the potential jurors is called VOIR DIRE) THE CHILD TO DETERMINE IF THE CHILD IS COMPETENT TO TESTIFY IF A YOUNG CHILD IS CALLED AS A WITNESS, THE TRIAL JUDGE WILL FIRST QUESTION (Questioning the potential jurors is called VOIR DIRE) THE CHILD TO DETERMINE IF THE CHILD IS COMPETENT TO TESTIFY A RULING IS MADE BY THE TRIAL JUDGE AS TO THE CHILD’S COMPETENCE AS A WITNESS A RULING IS MADE BY THE TRIAL JUDGE AS TO THE CHILD’S COMPETENCE AS A WITNESS ALL STATES HAVE STATUTES THAT ENABLE CHILDREN AS YOUNG AS 3 YEARS OF AGE TO APPEAR AS WITNESSES ALL STATES HAVE STATUTES THAT ENABLE CHILDREN AS YOUNG AS 3 YEARS OF AGE TO APPEAR AS WITNESSES TO PROTECT CHILDREN AND MINIMIZE EMOTIONAL DAMAGE, STATES HAVE ENACTED STATUTES TO HELP CHILDREN IN THE FOLLOWING WAYS: TO PROTECT CHILDREN AND MINIMIZE EMOTIONAL DAMAGE, STATES HAVE ENACTED STATUTES TO HELP CHILDREN IN THE FOLLOWING WAYS:

15 TESTIMONY BY CLOSED-CIRCUIT TELEVISION TESTIMONY BY CLOSED-CIRCUIT TELEVISION VIDEOTAPED TESTIMONY VIDEOTAPED TESTIMONY STATUTES MAKING IT EASIER FOR CHILDREN TO BE FOUND COMPETENT TO TESTIFY STATUTES MAKING IT EASIER FOR CHILDREN TO BE FOUND COMPETENT TO TESTIFY SPECIAL HEARSAY EXCEPTIONS FOR CHILD VICTIMS AND CHILD WITNESSES SPECIAL HEARSAY EXCEPTIONS FOR CHILD VICTIMS AND CHILD WITNESSES USE OF ANATOMICAL DOLLS IN CRIMINAL CHILD ABUSE CASES USE OF ANATOMICAL DOLLS IN CRIMINAL CHILD ABUSE CASES CLOSING THE COURTROOM TO ALL BUT NECESSARY PARTIES CLOSING THE COURTROOM TO ALL BUT NECESSARY PARTIES USE OF LEADING QUESTIONS WITH CHILD WITNESSES USE OF LEADING QUESTIONS WITH CHILD WITNESSES LIMITING THE LENGTH OF TIME A CHILD IS ON THE WITNESS STAND LIMITING THE LENGTH OF TIME A CHILD IS ON THE WITNESS STAND LIMITING THE NUMBER OF INTERVIEWS WITH CHILD VICTIMS LIMITING THE NUMBER OF INTERVIEWS WITH CHILD VICTIMS STATUTES REQUIRING SPEEDY HANDLING OF CASES INVOLVING CHILD VICTIMS STATUTES REQUIRING SPEEDY HANDLING OF CASES INVOLVING CHILD VICTIMS

16 CREDIBILITY OF WITNESS METHODS TO KEEP WITNESSES HONEST METHODS TO KEEP WITNESSES HONEST WITNESSES MUST TAKE AN OATH OR AFFIRMATION THAT THEY WILL TELL THE TRUTH WITNESSES MUST TAKE AN OATH OR AFFIRMATION THAT THEY WILL TELL THE TRUTH WITNESSES MUST BE PERSONALLY PRESENT AT THE TRIAL WITNESSES MUST BE PERSONALLY PRESENT AT THE TRIAL WITNESSES ARE SUBJECT TO CROSS- EXAMINATION WITNESSES ARE SUBJECT TO CROSS- EXAMINATION WITNESSES THAT DO NOT TELL THE TRUTH RUN THE RISK OF BEING CHARGED WITH PERJURY WITNESSES THAT DO NOT TELL THE TRUTH RUN THE RISK OF BEING CHARGED WITH PERJURY IF A WITNESS REFUSES TO TESTIFY OR REFUSES TO ANSWER QUESTIONS THAT ARE NOT PRIVILEGED, THEY COULD BE FOUND IN CONTEMPT OF COURT AND PUNISHED IF A WITNESS REFUSES TO TESTIFY OR REFUSES TO ANSWER QUESTIONS THAT ARE NOT PRIVILEGED, THEY COULD BE FOUND IN CONTEMPT OF COURT AND PUNISHED

17 CREDIBILITY AND THE WEIGHT OF EVIDENCE IT IS UP TO THE JUDGE OR JURY, AS THE TRIER OF FACT, TO DETERMINE WHETHER STATEMENTS MADE BY WITNESSES ARE TO BE BELIEVED AND WHAT WEIGHT TO GIVE THEM IT IS UP TO THE JUDGE OR JURY, AS THE TRIER OF FACT, TO DETERMINE WHETHER STATEMENTS MADE BY WITNESSES ARE TO BE BELIEVED AND WHAT WEIGHT TO GIVE THEM THE FOLLOWING FACTORS ARE CONSIDERED WHEN DETERMINING THE CREDIBILITY AND WEIGHT OF TESTIMONY FROM A WITNESS: THE FOLLOWING FACTORS ARE CONSIDERED WHEN DETERMINING THE CREDIBILITY AND WEIGHT OF TESTIMONY FROM A WITNESS: PERCEPTION - DID THE WITNESS HAVE THE OPPORTUNITY TO OBSERVE & PERCEIVE ACCURATELY? PERCEPTION - DID THE WITNESS HAVE THE OPPORTUNITY TO OBSERVE & PERCEIVE ACCURATELY? MEMORY - HAS THE WITNESS RETAINED AN ACCURATE IMPRESSION OF WHAT HE/SHE SAW, HEARD, SMELLED AND IS THE MEMORY OF THE EVENTS ACCURATE? MEMORY - HAS THE WITNESS RETAINED AN ACCURATE IMPRESSION OF WHAT HE/SHE SAW, HEARD, SMELLED AND IS THE MEMORY OF THE EVENTS ACCURATE? NARRATION - DOES THE TESTIMONY OF THE WITNESS AND THE LANGUAGE USED ACCURATELY DESCRIBE THE EVENTS? NARRATION - DOES THE TESTIMONY OF THE WITNESS AND THE LANGUAGE USED ACCURATELY DESCRIBE THE EVENTS?

18 CREDIBILITY AND THE WEIGHT OF EVIDENCE (Cont.) THE INCONTROVERTIBLE PHYSICAL FACTS RULE (ALSO KNOWN AS THE PHYSICAL FACTS RULE) HOLDS THAT THE FACT-FINDING BODY WILL GIVE NO WEIGHT TO WITNESS STATEMENTS THAT ARE INHERENTLY INCREDIBLE, UNBELIEVABLE AND CONTRARY TO PHYSICAL FACTS, KNOW PHYSICAL LAWS GENERAL KNOWLEDGE OR HUMAN EXPERIENCE THE INCONTROVERTIBLE PHYSICAL FACTS RULE (ALSO KNOWN AS THE PHYSICAL FACTS RULE) HOLDS THAT THE FACT-FINDING BODY WILL GIVE NO WEIGHT TO WITNESS STATEMENTS THAT ARE INHERENTLY INCREDIBLE, UNBELIEVABLE AND CONTRARY TO PHYSICAL FACTS, KNOW PHYSICAL LAWS GENERAL KNOWLEDGE OR HUMAN EXPERIENCE IN A JURY TRIAL, THE JURY IS THE SOLE JUDGE OF THE CREDIBILITY OF ALL WITNESSES, INCLUDING THE DEFENDANT IF HE TAKES THE WITNESS STAND IN A JURY TRIAL, THE JURY IS THE SOLE JUDGE OF THE CREDIBILITY OF ALL WITNESSES, INCLUDING THE DEFENDANT IF HE TAKES THE WITNESS STAND THE JURY EVALUATES THE WEIGHT AND CREDIBILITY OF TESTIMONY FREE FROM THE INFLUENCE OF THE TRIAL JUDGE THE JURY EVALUATES THE WEIGHT AND CREDIBILITY OF TESTIMONY FREE FROM THE INFLUENCE OF THE TRIAL JUDGE

19 DEMEANOR AS EVIDENCE IN JUDGING WITNESSES NOT ONLY ARE THE WORDS OF A WITNESS EVIDENCE IN A TRIAL, BUT THE DEMEANOR OF THE WITNESS HAS BEEN HELD ALSO TO BE EVIDENCE THAT MAY BE USED IN DETERMINING CREDIBILITY NOT ONLY ARE THE WORDS OF A WITNESS EVIDENCE IN A TRIAL, BUT THE DEMEANOR OF THE WITNESS HAS BEEN HELD ALSO TO BE EVIDENCE THAT MAY BE USED IN DETERMINING CREDIBILITY

20 CONSTITUTIONAL RIGHTS OF DEFENDANTS REGARDING WITNESSES THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSES THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSES A SUBPOENA IS A COMMAND TO THE PERSON TO WHOM IT IS DIRECTED TO APPEAR ON A SPECIFIED DATE AT A GIVEN TIME AND PLACE FOR THE PURPOSE OF TESTIFYING A SUBPOENA IS A COMMAND TO THE PERSON TO WHOM IT IS DIRECTED TO APPEAR ON A SPECIFIED DATE AT A GIVEN TIME AND PLACE FOR THE PURPOSE OF TESTIFYING A SUBPOENA DUCES TECUM COULD ALSO BE ISSUED REQUIRING THE PERSON TO BRING DOCUMENTS OR OTHER MATERIALS THAT ARE EXPECTED TO BE USEFUL IN THE PROCEEDINGS A SUBPOENA DUCES TECUM COULD ALSO BE ISSUED REQUIRING THE PERSON TO BRING DOCUMENTS OR OTHER MATERIALS THAT ARE EXPECTED TO BE USEFUL IN THE PROCEEDINGS ONLY COMPETENT WITNESSES WHO HAVE A PERSONAL KNOWLEDGE OF FACTS RELEVANT TO THE CASE MAY BE SUBPOENAED ONLY COMPETENT WITNESSES WHO HAVE A PERSONAL KNOWLEDGE OF FACTS RELEVANT TO THE CASE MAY BE SUBPOENAED

Expert Witness An expert witness is a witness, who by virtue of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of their expertise, referred to as the expert opinion, as an assistance to the fact-finder. Expert witnesses may also deliver expert evidence about facts from the domain of their expertise. An expert witness is a witness, who by virtue of education, training, skill, or experience, is believed to have knowledge in a particular subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of their expertise, referred to as the expert opinion, as an assistance to the fact-finder. Expert witnesses may also deliver expert evidence about facts from the domain of their expertise.witnesseducationtrainingskillexperienceknowledgeevidence factfact-finderwitnesseducationtrainingskillexperienceknowledgeevidence factfact-finder

Fact Witness A fact witness is a person whose testimony consists of the recitation of facts and/or events, as opposed to an expert witness, whose testimony consists of the presentation of an opinion, a diagnosis, etc. A fact witness is a person whose testimony consists of the recitation of facts and/or events, as opposed to an expert witness, whose testimony consists of the presentation of an opinion, a diagnosis, etc.

23 Qualifying as an Expert Witness Under the Frye standard, the test for admitting expert testimony is: Whether the expert’s testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. Whether the expert’s testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. Whether the theories and/or techniques relied upon by the expert are generally accepted by the relevant professional community. Whether the theories and/or techniques relied upon by the expert are generally accepted by the relevant professional community. Whether the particular expert is qualified to present expert testimony on the subject at issue. Whether the particular expert is qualified to present expert testimony on the subject at issue. (continued on next slide)

24 Qualifying as an Expert Witness Under the Federal Rules of Evidence, a judge will permit Behavior Analyst to testify as an expert witness only if the judge decides that: The Behavior Analyst’s testimony will help the jurors or judge understand the evidence or determine a fact in issue. The Behavior Analyst’s testimony will help the jurors or judge understand the evidence or determine a fact in issue. The Behavior Analyst is qualified as an expert by knowledge, skill, experience, training, or education. The Behavior Analyst is qualified as an expert by knowledge, skill, experience, training, or education. The Behavior Analyst can show that his or her testimony (a) will be based on sufficient facts or data and (b) will be the product of reliable principles and methods that have been applied reliably to the facts of the case. The Behavior Analyst can show that his or her testimony (a) will be based on sufficient facts or data and (b) will be the product of reliable principles and methods that have been applied reliably to the facts of the case. (continued on next slide)

Challenge to an Expert Witness Opposing counsel may challenge the ability of a person brought before the court as an Expert Witness; Opposing counsel may challenge the ability of a person brought before the court as an Expert Witness; The process for determining if the person will be allowed to testify as an Expert Witness is called: VOIR DIRE; The process for determining if the person will be allowed to testify as an Expert Witness is called: VOIR DIRE;

26 VOIR DIRE THE PHRASE VOIR DIRE (FRENCH FOR “TO SPEAK THE TRUTH”) IS THE TERM USED TO DESCRIBE THE PRELIMINARY EXAMINATION USED TO DETERMINE WHETHER A WITNESS OR JUROR IS COMPETENT OR QUALIFIED; THE PHRASE VOIR DIRE (FRENCH FOR “TO SPEAK THE TRUTH”) IS THE TERM USED TO DESCRIBE THE PRELIMINARY EXAMINATION USED TO DETERMINE WHETHER A WITNESS OR JUROR IS COMPETENT OR QUALIFIED; THE VOIR DIRE CONSIST OF QUESTIONS TO DETERMINE WHETHER THEY ARE COMPETENT AND WHAT THEIR INTERESTS AND BIASES ARE; THE VOIR DIRE CONSIST OF QUESTIONS TO DETERMINE WHETHER THEY ARE COMPETENT AND WHAT THEIR INTERESTS AND BIASES ARE; QUESTIONING DURING VOIR DIRE IS USUALLY DONE BY THE TRIAL JUDGE BUT DEPENDING ON THE LAW OR PRACTICE WITHIN THE STATE, THE QUESTIONING COULD BE DONE BY THE ATTORNEYS; QUESTIONING DURING VOIR DIRE IS USUALLY DONE BY THE TRIAL JUDGE BUT DEPENDING ON THE LAW OR PRACTICE WITHIN THE STATE, THE QUESTIONING COULD BE DONE BY THE ATTORNEYS;

28 Qualifying as an Expert Witness In Daubert v. Merrill Dow Pharmaceuticals, Inc., the U.S. Supreme Court established the rule for federal courts that trial judges have a special responsibility to ensure that scientific testimony is not only relevant, but also reliable. In Kumho Tire Company, Ltd. v. Carmichael, the Supreme Court decided that a judge’s “gatekeeping” obligation applies not only to scientific testimony but to all expert testimony. (continued on next slide)

29 Qualifying as an Expert Witness In Daubert, the U.S. Supreme Court suggested that judges consider the following factors: Whether the theory or technique in question can be (and has been) tested. Whether the theory or technique in question can be (and has been) tested. Whether the theory or technique in question has been subjected to peer review and publication. Whether the theory or technique in question has been subjected to peer review and publication. The theory or technique’s known or potential error rate. The theory or technique’s known or potential error rate. Whether the theory or technique has attracted widespread acceptance within the relevant community. Whether the theory or technique has attracted widespread acceptance within the relevant community. (continued on next slide)

30 Qualifying as an Expert Witness Ten guidelines to help avoid legal challenges: 1. Know the relevant professional standards. 2. Apply the relevant professional standards. 3. Know the relevant professional literature. 4. Know the relevant professional organizations. (continued on next slide)

31 Qualifying as an Expert Witness 5. Use generally accepted analytical methods. 6. Use multiple analytical methods. 7. Synthesize the conclusions of the multiple analytical methods. 8. Disclose all significant analytical assumptions and variables. 9. Subject the analysis to peer review. 10. Test the analysis—and the conclusions— for reasonableness.

32 Written Reports  An expert should never draft a written report of any kind unless he or she has been expressly directed to do so by hiring counsel.  Federal Rules of Civil Procedure 26(a)(2)(B) requires a written report.  Keep a diary of interview dates, etc.  Do not destroy interview notes.

33 Written Report Contents (FRCP 26(a)(2)(B))  All opinions to be expressed and the bases for them.  Data or other information considered in forming the opinions.  Any exhibits to be used as a summary of or support for opinions.  Witness qualifications, including a list of all publications authored within the last 10 years.  Witness compensation.  List of other disputes in which the witness has testified at deposition or trial during the last 4 years.  Signature of the expert testifying. Note: Federal Rule of Civil Procedure 27(e)(1) indicates that an expert must update a written report or disposition.

34 Types of Expert Reports Fact-oriented report – gathers and evaluates facts and uses them to prepare a report. Check and re-check the numbers and the facts. Opinion report (e.g., valuation report) – more subjective and rely more on the professional judgment of the expert. Combination of above types.

Credentials and Credibility

Your CV and or Website Your CV and or Website Accuracy-update and proof; Accuracy-update and proof; Make sure CV and website match; Make sure CV and website match; Don’t inflate your experience; Don’t inflate your experience; Don’t brag (winning cases, national expert, etc); Don’t brag (winning cases, national expert, etc); Only one CV for all cases; Only one CV for all cases;

Credentials and Credibility Everything you do in and out of the courtroom will affect your credibility; Everything you do in and out of the courtroom will affect your credibility; Be consistent-reports, testimony, writing and publications, presentations; Be consistent-reports, testimony, writing and publications, presentations; Be balanced and objective in opinions; Be balanced and objective in opinions; Skeletons in the closet; Skeletons in the closet;

Tell the Truth! Always tell the truth, no matter how embarrassing your answer may be. Your credibility is the only thing you have going for you on the witness stand, and if you are caught in a lie – you will never regain your credibility; Always tell the truth, no matter how embarrassing your answer may be. Your credibility is the only thing you have going for you on the witness stand, and if you are caught in a lie – you will never regain your credibility; Telling a Lie is a very complicated process that can easily be detected by a well trained lawyer; Telling a Lie is a very complicated process that can easily be detected by a well trained lawyer;

Don’t EVER Let This Be You!

40 Litigation in the United States The five major phases of litigation are: Pleadings. Pleadings. Discovery. Discovery. Trial. Trial. Outcome. Outcome. Possible appeal. Possible appeal. Much of the work for Behavior Analysts occurs in the discovery stage.

We Will Focus On: Discovery Discovery Trial Preparation Trial Preparation Depositions Depositions Court/Hearings Court/Hearings Direct Testimony Direct Testimony Cross-examination Cross-examination

42 Preparing to Testify as an Expert Witness Maintaining independence from the client. Maintaining independence from the client. Evidence upon which experts may rely. Evidence upon which experts may rely. Use of confidential client information. Use of confidential client information. Expert reports. Expert reports. Working papers. Working papers. Evaluation of other experts. Evaluation of other experts. Exhibits and other demonstrative evidence. Exhibits and other demonstrative evidence.

Preparation Testimony/deposition agreement for fees, subpoena and scheduling; Testimony/deposition agreement for fees, subpoena and scheduling; Trial ready file; Trial ready file; Know the report and documents cold- identify significant testimony issue; Know the report and documents cold- identify significant testimony issue; Timeline; Timeline; Consulting with counsel to develop direct and cross-examination questions; Consulting with counsel to develop direct and cross-examination questions; Motions in limine; Motions in limine;

Motion in limine (Latin: "at the threshold") is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. Motion in limine (Latin: "at the threshold") is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.LatinmotiontrialjudgeevidencejurytrialLatinmotiontrialjudgeevidencejurytrial For Example – the evidence you are about to present. For Example – the evidence you are about to present.

Dress Appropriately A neat appearance and proper dress are important. A neat appearance and proper dress are important. The trouble with an appearance that seems very casual or very dressy is that it will distract the hearing officer during the brief time you’re on the stand and he/she won’t concentrate on your testimony. The trouble with an appearance that seems very casual or very dressy is that it will distract the hearing officer during the brief time you’re on the stand and he/she won’t concentrate on your testimony.

Pre-Trail Preparation Preparation and organization Preparation and organization Allow sufficient time to meet with the attorney who hired you in advance; go over areas of questioning for direct examination and anticipated areas of cross-examination; Allow sufficient time to meet with the attorney who hired you in advance; go over areas of questioning for direct examination and anticipated areas of cross-examination; Be prepared - review your report, notes, etc.; Be prepared - review your report, notes, etc.;

Appropriate Discussion It is appropriate for the attorney to pose specific questions to you and ask “how would you respond if I asked the following:” It is appropriate for the attorney to pose specific questions to you and ask “how would you respond if I asked the following:” It is not appropriate for the attorney to ask you to change your answer; It is not appropriate for the attorney to ask you to change your answer; It is appropriate for the Attorney to reframe the question and ask if you would have a different answer if asked in that manner; It is appropriate for the Attorney to reframe the question and ask if you would have a different answer if asked in that manner;

Deposition

Deposition Part of the pre-trial discovery (fact-finding) process; Part of the pre-trial discovery (fact-finding) process; Conducted before trial held out of court with no judge present; Conducted before trial held out of court with no judge present; The witness is placed under oath; The witness is placed under oath; Lawyers for each party may ask questions; Lawyers for each party may ask questions; The questions and answers are recorded; The questions and answers are recorded; When a person is unavailable to testify at trial, the deposition of that person may be used; When a person is unavailable to testify at trial, the deposition of that person may be used;

50 Testifying at a Deposition The scope of their assignment. The scope of their assignment. Their current employment (job title, duties). Their current employment (job title, duties). Their educational background. Their educational background. Licenses. Licenses. Work experience. Work experience. Memberships in professional organizations. Memberships in professional organizations. (continued on next slide) Expert witnesses can expect to be asked about the following at a deposition:

51 Testifying at a Deposition Publication and lectures. Publication and lectures. Fields in which they are qualified as an expert. Fields in which they are qualified as an expert. Other work they have performed as an expert or other litigation consultant. Other work they have performed as an expert or other litigation consultant. What compensation they are receiving (and what percentage of their compensation is derived from testifying as an expert witness). What compensation they are receiving (and what percentage of their compensation is derived from testifying as an expert witness). What opinions they have formed. What opinions they have formed. The bases for their opinions. The bases for their opinions. Almost anything. Almost anything.

Depositions Nature and Purpose of Deposition Nature and Purpose of Deposition Reversal of Goals Reversal of Goals Expert’s Role Expert’s Role Opposing Attorney’s Role Opposing Attorney’s Role Your Attorney’s Role Your Attorney’s Role

Depositions Typical attorney types and how they Typical attorney types and how they help you: help you: The “Plodder” The “Plodder” The “Gnat” The “Attacker”

Depositions To survive the deposition, you need to: To survive the deposition, you need to: 1) Be as prepared for the deposition as you will be for the trial; 1) Be as prepared for the deposition as you will be for the trial; 2) Remain a calm and active listener; 3) Do not yield to attempts by the examiner to recast your opinion; 4) Testify in a style that is personally comfortable to you, i.e., be yourself

Court/Hearings

QUESTIONS: WHO ASKS THEM? DIRECT EXAMINATION DIRECT EXAMINATION When a witness gives testimony, he/she is first asked some questions by the lawyer who called him/her to the stand. The questions asked are for the purpose of “direct examination.” When a witness gives testimony, he/she is first asked some questions by the lawyer who called him/her to the stand. The questions asked are for the purpose of “direct examination.” The basic purpose of direct examination is for you to tell the JUDGE/JURY what you know about the case. The basic purpose of direct examination is for you to tell the JUDGE/JURY what you know about the case.

CROSS-EXAMINATION CROSS-EXAMINATION When you are questioned by the opposing attorney, it is called “cross examination.” This process is sometimes repeated several times in order to clearly address all aspects of the questions and answers. The basic purpose of cross examination is to raise doubts about the accuracy of your testimony. Don’t get mad if you feel you are being doubted during the cross examination. The defense counsel is just doing their job. When you are questioned by the opposing attorney, it is called “cross examination.” This process is sometimes repeated several times in order to clearly address all aspects of the questions and answers. The basic purpose of cross examination is to raise doubts about the accuracy of your testimony. Don’t get mad if you feel you are being doubted during the cross examination. The defense counsel is just doing their job.

Being Sworn as a Witness When you are called to testify, you will first be sworn in. When you are called to testify, you will first be sworn in. When you take the oath, When you take the oath, stand up straight, stand up straight, pay attention to the clerk, pay attention to the clerk, and say “I do” clearly. and say “I do” clearly.

Direct Examination

Direct Examination: What It Is Generally conducted by the attorney who called you as a witness or retained you; Generally conducted by the attorney who called you as a witness or retained you; Carefully crafted questions to elicit information favorable to his client. Carefully crafted questions to elicit information favorable to his client.

Direct Examination Direct examination questions Direct examination questions Rehearse the questions with the attorney prior to the hearing; Rehearse the questions with the attorney prior to the hearing; Don’t read off a script; Don’t read off a script;

Direct Examination: On The Stand You are allowed to bring documents with you to the witness stand; You are allowed to bring documents with you to the witness stand; However, understand that copies of any documents you bring to the witness stand must be given to the other side if they make such a request. However, understand that copies of any documents you bring to the witness stand must be given to the other side if they make such a request. Be a great teacher-likable, human, honest, entertaining and perky; Be a great teacher-likable, human, honest, entertaining and perky; Do not advocate; Do not advocate; Keep it simple; Keep it simple; Summarize what you are going to tell them; Summarize what you are going to tell them;

Direct Examination Don’t hedge YOUR ANSWERS; Don’t hedge YOUR ANSWERS; Never say: “could”, “may”, “I suspect”, “it seems”; Never say: “could”, “may”, “I suspect”, “it seems”; Use confident language “yes”; “absolutely”, “I strongly disagree” or “I strongly agree”; Use confident language “yes”; “absolutely”, “I strongly disagree” or “I strongly agree”; Cite psychological/scientific terms simply; Cite psychological/scientific terms simply; Never use Professional Jargon (DRO, DRI, etc.); Never use Professional Jargon (DRO, DRI, etc.);

Direct Examination Use numbered lists Use numbered lists “There are two important considerations in making this diagnosis”, “There are two important considerations in making this diagnosis”, first his history; first his history; second his current symptoms; second his current symptoms; Use analogies; Use analogies; Sit forward and don’t touch your face; Sit forward and don’t touch your face; Turn and talk to the jurors; Turn and talk to the jurors;

Direct Examination When testifying, be clear and articulate in your answers; When testifying, be clear and articulate in your answers; Answer politely and non-defensively; Answer politely and non-defensively; Speak in a professional manner about all parties involved in the case; Speak in a professional manner about all parties involved in the case; Speak in a clear and calm voice, and make sure the Judge/Jury can hear you; Speak in a clear and calm voice, and make sure the Judge/Jury can hear you; Stop talking immediately when an objection is made; Stop talking immediately when an objection is made;

RESPOND ORALLY TO THE QUESTIONS Do not nod your head for a “yes” or “no” answer; Do not nod your head for a “yes” or “no” answer; Speak aloud so that the court reporter or recording device can hear and record your answer; Speak aloud so that the court reporter or recording device can hear and record your answer;

Answering Questions Make eye contact with the attorney while he/she is asking you a question, but then speak directly to the Judge/Jury during your answer; Make eye contact with the attorney while he/she is asking you a question, but then speak directly to the Judge/Jury during your answer; Attempt to make eye contact with the Judge/Jury during your answer and “talk to him/her/them” simply as a person to whom you are trying to explain your answer; Attempt to make eye contact with the Judge/Jury during your answer and “talk to him/her/them” simply as a person to whom you are trying to explain your answer;

How to Answer Questions Answer questions posed during Direct Examination directly and simply; Answer questions posed during Direct Examination directly and simply; The best answer starts with a "yes" or "no" (if the question can be answered "yes" or "no"), and then has one to three sentences of explanation; The best answer starts with a "yes" or "no" (if the question can be answered "yes" or "no"), and then has one to three sentences of explanation; For example, "Yes, I am a Board Certified Behavior Analyst." "Yes, I conducted the Functional Analysis and developed the Behavior Treatment Plan for Bob." For example, "Yes, I am a Board Certified Behavior Analyst." "Yes, I conducted the Functional Analysis and developed the Behavior Treatment Plan for Bob."

Stick to The Facts If asked for inferences or conclusions, support them based on accepted practice standards and professional literature; If asked for inferences or conclusions, support them based on accepted practice standards and professional literature;

DON’T SET YOURSELF UP FOR AN ERROR Unless certain, don’t say “That’s all of the conversation” or “Nothing else happened.” Instead say, “That’s all I recall,” or “That’s all I remember happening”; Unless certain, don’t say “That’s all of the conversation” or “Nothing else happened.” Instead say, “That’s all I recall,” or “That’s all I remember happening”; It may be that after more thought or another question, you will remember something important; It may be that after more thought or another question, you will remember something important;

CORRECT YOUR MISTAKES If your answer was not correctly stated, correct it immediately; If your answer was not correctly stated, correct it immediately; If your answer was not clear, clarify it immediately. It is better to correct a mistake yourself than to have the attorney discover an error in your testimony; If your answer was not clear, clarify it immediately. It is better to correct a mistake yourself than to have the attorney discover an error in your testimony; If you realize you have answered incorrectly, say, “May I correct something I said earlier?” If you realize you have answered incorrectly, say, “May I correct something I said earlier?” Sometimes witnesses give inconsistent testimony- something they said before doesn’t agree with something they said later; Sometimes witnesses give inconsistent testimony- something they said before doesn’t agree with something they said later; If this happens to you, don’t get flustered. Just explain honestly why you were mistaken. The hearing officer, like the rest of us, understands that people make honest mistakes; If this happens to you, don’t get flustered. Just explain honestly why you were mistaken. The hearing officer, like the rest of us, understands that people make honest mistakes;

BE POSITIVE AND CONFIDENT Give positive, definite answers when possible; Give positive, definite answers when possible; Avoid saying, “I think,” “I believe,” or “In my opinion” if you can answer positively; Avoid saying, “I think,” “I believe,” or “In my opinion” if you can answer positively; If you do know, then say so; If you do know, then say so; You can be positive about important things which you would naturally remember; You can be positive about important things which you would naturally remember; If you are asked about little details which a person naturally would not remember, it is best just to say so if you don’t remember; If you are asked about little details which a person naturally would not remember, it is best just to say so if you don’t remember; Don’t make up an answer; Don’t make up an answer;

SPEAK IN YOUR OWN WORDS Don’t try to memorize what you are going to say. Doing so will make your testimony sound “pat” and unconvincing; Don’t try to memorize what you are going to say. Doing so will make your testimony sound “pat” and unconvincing; Instead, be yourself, and prior to trial go over in your own mind those matter about which you will be questioned; Instead, be yourself, and prior to trial go over in your own mind those matter about which you will be questioned;

Tell the Truth Convincingly When you testifying, you will, of course, tell the truth. You want to tell the truth in a clear and convincing way, not in a confusing and stumbling way; When you testifying, you will, of course, tell the truth. You want to tell the truth in a clear and convincing way, not in a confusing and stumbling way; Listen carefully to each question, answer one at a time, and answer only the question that was asked; Listen carefully to each question, answer one at a time, and answer only the question that was asked;

Cross-Examination Opposing attorney asks questions Opposing attorney asks questions His/Her Goals: His/Her Goals: To lessen the impact of testimony you gave on direct exam by discrediting or impeaching you; To lessen the impact of testimony you gave on direct exam by discrediting or impeaching you; Get (trick) you into supporting his/her clients position; Get (trick) you into supporting his/her clients position; Will directly attack your opinion and methodology you used to make your opinion; Will directly attack your opinion and methodology you used to make your opinion;

Listen to The Question Listen carefully to the question that is asked, and then answer it; Listen carefully to the question that is asked, and then answer it; Try not to anticipate the question or interrupt the attorney asking you the question; Try not to anticipate the question or interrupt the attorney asking you the question; This is particularly true when it is the Judge who asks the question; This is particularly true when it is the Judge who asks the question; You may explain your answer, but answer the question; You may explain your answer, but answer the question;

How to Answer Questions Answer questions posed during Cross Examination directly and simply. The best answers are "yes" or "no" (if the question can be answered "yes" or "no"), with little or no explanation; Answer questions posed during Cross Examination directly and simply. The best answers are "yes" or "no" (if the question can be answered "yes" or "no"), with little or no explanation; However, if answering a question with a yes/no answer will misrepresent your answer, state this fact in the least number of words possible; However, if answering a question with a yes/no answer will misrepresent your answer, state this fact in the least number of words possible;

79 Cross Examination Tactics  Do not speak to people outside courtroom while waiting and during breaks.  Turn off your cell phone or pager before entering the court.  Do not wear emblems.  Avoid humor, but laugh at judge’s humor.  Keep your hands on top of the table, not hidden.  Be sure your attorney questions you in detail about your qualifications in order to impress the judge/jurors. Do not allow the other side to stipulate you as an expert.  Dress neatly and conservatively.  Arrive on time at the court house (have multiple reminders).  When taking the oath as a witness, say loudly, “I do.”  Be sincere and respectful. (continued on next slide)

80 Cross Examination Tactics  Talk directly to the jurors (or judge if no jurors). Look them in the eyes. Make contact with each of the jurors.  Explain number carefully, possibly using analogies with tax returns and checkbook.  Pausing does not harm you.  Use first person, active person: I reviewed these records, and I found….  Tell stories about people.  Be careful when shown passages from textbooks, etc.  Jurors have nothing to do for long periods. They are always watching. Be careful every place in the court house, even while driving to the court house.  When you are in trouble in the court room, do not lean back. Instead lean forward.  When you are finished, do not leave the courtroom until there is break.

How To Answer Don’t justify or explain your answer; Don’t justify or explain your answer; Don’t give unsolicited information; Don’t give unsolicited information; When being cross-examined, if you feel that you must explain an answer you’ve given, ask permission from the Judge to do so; When being cross-examined, if you feel that you must explain an answer you’ve given, ask permission from the Judge to do so; However, do so only when you feel confident, not when you feel defensive; However, do so only when you feel confident, not when you feel defensive; If permission isn’t granted, your client’s attorney can ask you to explain the answer on re-direct examination. Then your questions are coming from a position of strength; If permission isn’t granted, your client’s attorney can ask you to explain the answer on re-direct examination. Then your questions are coming from a position of strength;

But, Be Careful of the Lawyer’s Motives A lawyer’s tactic may be, “Earlier you said X, now you are saying Y. Which time were you lying?” A lawyer’s tactic may be, “Earlier you said X, now you are saying Y. Which time were you lying?” Think: Did you really say X? Are you saying Y? Were you just confused? Think: Did you really say X? Are you saying Y? Were you just confused? Clear it up – just tell the truth! Clear it up – just tell the truth!

State What You Personally Saw or Heard In a hearing if you are asked if you "know" something, this usually means you are being asked whether you personally saw or you personally heard something; In a hearing if you are asked if you "know" something, this usually means you are being asked whether you personally saw or you personally heard something; If your answer is based solely on what someone else told you, say so; If your answer is based solely on what someone else told you, say so; In everyday life people feel they "know" things that others have told them, but in a hearing this is not what is meant by "know;" In everyday life people feel they "know" things that others have told them, but in a hearing this is not what is meant by "know;"

Don't Worry About Looking Stupid Don't worry about whether you look stupid. Just tell the truth, and don't make up answers when you aren't sure of the answer; Don't worry about whether you look stupid. Just tell the truth, and don't make up answers when you aren't sure of the answer; For example, if an attorney says to you in an indignant and shocked manner, "Didn't you read that before you signed it?!" For example, if an attorney says to you in an indignant and shocked manner, "Didn't you read that before you signed it?!" If you did not read it before signing it, say so; If you did not read it before signing it, say so; Don't let the attorney's manner bully you into an incorrect answer; Don't let the attorney's manner bully you into an incorrect answer;

Don't let your fear of looking stupid push you into making up answers; Don't let your fear of looking stupid push you into making up answers; Don't guess. If you answer is an estimate or only an approximation, say so; Don't guess. If you answer is an estimate or only an approximation, say so; It is okay to say you are making an estimate, but you should not just guess at an answer; It is okay to say you are making an estimate, but you should not just guess at an answer;

Tactics of Opposing Counsel Interrupting your testimony and not letting you finish your statements; Interrupting your testimony and not letting you finish your statements; Chip away at your conclusions; Chip away at your conclusions; Behavior assessment is not a science; Behavior assessment is not a science; Getting the you lost in the data; Getting the you lost in the data; Claiming that you did not interview the subject of the hearing, or your interview was too short; Claiming that you did not interview the subject of the hearing, or your interview was too short;

Tactics of Opposing Counsel Making you defensive or lose your cool; Making you defensive or lose your cool; Directing you away from your area of expertise; Directing you away from your area of expertise; Standing away from the Judge/Jury son that you have to reposition yourself to look at them when they ask you questions Standing away from the Judge/Jury son that you have to reposition yourself to look at them when they ask you questions – However, remember:

Even During Cross-Examination

Don't Guess About The Lawyer's Motives Don't try to guess why you are being asked each question. Just focus on giving truthful answers. This is the best way to respond to tricky questions -- with truth. Don't try to guess why you are being asked each question. Just focus on giving truthful answers. This is the best way to respond to tricky questions -- with truth.

Effective Cross-Examination Will Attack credentials of the expert; Attack credentials of the expert; Show as biased – “Paid Whore” for the parent/school district; Show as biased – “Paid Whore” for the parent/school district; Claim that you have an unprofessional bias against the opposition; Claim that you have an unprofessional bias against the opposition; Impeach you with prior inconsistent statements or opinions; Impeach you with prior inconsistent statements or opinions; Get the expert lost in the records; Get the expert lost in the records;

Offensive Tactics with Opposing Counsel Choose your battles – Do not debate every point; Choose your battles – Do not debate every point; Challenge false statements (Do you agree…yes, yes, no); Challenge false statements (Do you agree…yes, yes, no); Do not answer compound questions; Do not answer compound questions; Do not Answer hypothetical's; Do not Answer hypothetical's; Strike back diplomatically with a light touch; Strike back diplomatically with a light touch;

Offensive Tactics with Opposing Counsel Bring back the line of questions to the facts of the case; Bring back the line of questions to the facts of the case; Break the momentum of opposing counsel; Break the momentum of opposing counsel; Review documents carefully before answering; Review documents carefully before answering; Ask if you do not understand; Ask if you do not understand;

Be Careful of Questions With "All" or "None " in Them In a hearing if a question has the word "all" or "none," you need to understand that this does not mean "almost all" or "hardly any." "All" means absolutely every single one with no exceptions, and "none" means not even one single one. Be very careful about questions with "all" and "none" in them. When asked, "Is that all?" you may want to say, "That is all that I can think of right now." Don't say, That's all he said," or "Nothing else occurred." You may well remember other examples later. In a hearing if a question has the word "all" or "none," you need to understand that this does not mean "almost all" or "hardly any." "All" means absolutely every single one with no exceptions, and "none" means not even one single one. Be very careful about questions with "all" and "none" in them. When asked, "Is that all?" you may want to say, "That is all that I can think of right now." Don't say, That's all he said," or "Nothing else occurred." You may well remember other examples later.

Be Careful When opposing counsel uses phrases such as “help me to understand”, resist the urge to elaborate — merely answer the question as briefly and specifically as possible. When opposing counsel uses phrases such as “help me to understand”, resist the urge to elaborate — merely answer the question as briefly and specifically as possible.

Do Not Speculate If asked a question that begins with “isn’t it possible”, do not speculate and do not say “anything is possible”— stick to the facts of the case. If asked a question that begins with “isn’t it possible”, do not speculate and do not say “anything is possible”— stick to the facts of the case.

It's OK Not To Remember If you don't remember something, say, "I don't remember." This is very important. If you are asked about doing something, and you don't specifically remember what you didn't, say so. You can offer to testify as to your usual practice, and tell the hearing officer this is what you are doing: "I don't remember what I did on February 27, but usually I go straight home from work, arriving about 6 PM." If you don't remember something, say, "I don't remember." This is very important. If you are asked about doing something, and you don't specifically remember what you didn't, say so. You can offer to testify as to your usual practice, and tell the hearing officer this is what you are doing: "I don't remember what I did on February 27, but usually I go straight home from work, arriving about 6 PM."

DO NOT LOSE YOUR TEMPER A witness who is angry may exaggerate or appear to be less than objective, or emotionally unstable. Keep your temper. Always be courteous, even if the lawyer questioning you appears discourteous. Don’t appear to be a “wise guy” or you will lose the respect of the hearing officer. A witness who is angry may exaggerate or appear to be less than objective, or emotionally unstable. Keep your temper. Always be courteous, even if the lawyer questioning you appears discourteous. Don’t appear to be a “wise guy” or you will lose the respect of the hearing officer.

Effective Cross-Examination Listen carefully Listen carefully Clarify if you do not understand Clarify if you do not understand Admit if you do not know the answer Admit if you do not know the answer Stay in your area of expertise Stay in your area of expertise Never be defensive, argumentative or arrogent Never be defensive, argumentative or arrogent You will be asked your fees You will be asked your fees

Miscellaneous Pointers Don't put your hand over your mouth while you testify. Don't put your hand over your mouth while you testify. Do not chew gum. Do not chew gum. Don't memorize your testimony. Don't memorize your testimony. Do not argue with the other party. Do not argue with the other party.

100 Liability of Expert Witnesses Witness immunity Witness immunity Threat of lawsuit Threat of lawsuit Claims of negligence Claims of negligence Bases for liability Bases for liability Breach of contract Breach of contract Negligence Negligence Criminal process Criminal process