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

Overview Credentials and Credibility Credentials and Credibility Depositions Depositions Direct Testimony Direct Testimony Cross-examination Cross-examination

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 Dress appropriately Dress appropriately

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

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

Direct Examination Conducted by attorney who called you as a witness or retained you Conducted by 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 Preparation and organization Preparation and organization 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 Direct examination questions Direct examination questions Rehearse the questions Rehearse the questions Don’t read off a script Don’t read off a script Point out problems in the evaluation if any Point out problems in the evaluation if any Head off difficult issues in Direct (i.e., old age of offender) Head off difficult issues in Direct (i.e., old age of offender) Avoid long narratives (jurors have a 30 second attention span) Avoid long narratives (jurors have a 30 second attention span)

Direct Examination Don’t hedge “could, may, I suspect, it seems.” Use confident language “yes, absolutely, I strongly disagree or agree. ” Don’t hedge “could, may, I suspect, it seems.” Use confident language “yes, absolutely, I strongly disagree or agree. ” Cite psychological/scientific terms simply Cite psychological/scientific terms simply Use visual aids and move around Use visual aids and move around

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

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

Cross-Examination Opposing attorney asks questions Opposing attorney asks questions Goals: Goals: to lessen the impact of testimony you gave on direct exam by discrediting/impeach you to lessen the impact of testimony you gave on direct exam by discrediting/impeach you Will use you to support her clients position Will use you to support 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

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

Effective Cross-Examination Will Attack credentials of the expert Attack credentials of the expert Show bias-whore for the state/defense Show bias-whore for the state/defense Show unprofessional bias against the offender Show unprofessional bias against the offender 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

Examples Cross-Examination Example #1: Paraphilia Not Otherwise Specified, non-consenting persons Example #1: Paraphilia Not Otherwise Specified, non-consenting persons

Offensive Tactics with Opposing Counsel Making you defensive or lose your cool Making you defensive or lose your cool Direct away from your area of expertise Direct away from your area of expertise Bring back the facts of the case Bring back 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.

Offensive Tactics with Opposing Counsel Choose your battles Choose your battles 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 Answering hypothetical's Answering hypothetical's Strike back diplomatically with a light touch. Strike back diplomatically with a light touch.

Offensive Tactics with Opposing Counsel Interrupting expert and not let you finish Interrupting expert and not let you finish Chip away at your diagnoses Chip away at your diagnoses Risk assessment is not a science Risk assessment is not a science Getting the expert lost in the data Getting the expert lost in the data Your did not interview or it was too short Your did not interview or it was too short

Contact Information Amy Phenix, Ph.D. Amy Phenix, Ph.D. P.O Box 325, Cambria, CA Cameron Page, J.D. Cameron Page, J.D. San Bernardino County District Attorney's Office 412 West Hospitality Lane, Suite 301 San Bernardino, CA