Forget about the charlatans, the junk science, and the expert for hire. Spare a thought instead for how we can prepare and present our authentic experts so that they say, on the way out of the court building, “Thank you. I believe we made a real contribution in there.”
Here’s a checklist (not exhaustive) that some readers will find useful. It’s all about building trust:
- Customize the expert’s statement of qualifications and experience so that it puts the most relevant material up front. Don’t include the irrelevant– this is not a generalized job resume.
- If your expert can’t explain it to you then they cannot reach a decision maker (be that a judge or jury) so pay them and sack them.
- Emphasize to your expert that their role is to opine on what facts mean because the lay audience (judge and jury) lack the skills to do that.
- The decision making audience must find the expert credible and consequently be prepared to accept and apply the expert’s opinion.
- What the expert is communicating is, ‘Here is my transparent, replicable process. This is the data I had. Here is my methodology. Other credible experts can check. By the way, here is my view of ‘missing data’, along with my assessment about how that data limitation affects my opinion’.
- Rehearse with the expert so that they are comfortable listening to the questions from any lawyers but talking with, and looking towards the decision maker.
- Deep into your direct reduce your expert’s target size on cross-examination by explicit recognition of any and all limitations.
- Your expert should signal to you during cross what can be fixed on redirect; for example, a tag to their answer, ‘would you like me to explain’.
- Rehearse with your expert to ensure that they can use an ‘incremental build’ during direct; that is, that you and they break down their explanation into such small, logical, clear segments that the decision making audience can repeatedly nod to show you and the expert that they can follow the concepts.
- Be sure that you and the expert work as a team: settle them into role, show their expertness, be open about their fee, have them state their opinion, then share the agenda of topics by which they and you will substantiate that opinion to the decision maker.
- Always explain a technical term by an explanation before it is used. Lay audiences appreciate that approach. An explanation after using the term is patronising.
- Find ways, beyond just listening, to involve the decision maker in the expert’s explanations. Consider whether there is scope for visuals, models, demonstrations, being careful to meet evidentiary and procedural rules.
- Treat an expert as you like to be treated: with respect and courtesy, coupled with such prompting and pushing as is fairly required. This applies from first engagement through to prompt payment of their final account.
Hugh Selby © 2013.
Hugh Selby has taught on a number of NITA courses. Along with his NITA friends Chris Behan and Charlie Rose he runs www.advocacyteaching.blogspot.com , a blog with a focus for all those interested in improving the teaching and learning of advocacy skills, especially at law school. He is based at the Australian National University, firstname.lastname@example.org