Facilitating Practical Solutions to the Most Challenging Problems
6. Be wary of absolutes. As with other witnesses, testifying in
absolute terms can give rise to problems. For example, be wary of agreeing that an expert should always perform certain tasks as part of a particular analysis if it is not possible to perform such tasks while still completing the assignment to a satis- factory level of professionalism given the limitations of time, budget, available data, etc. Be cautious about using terms such as “always” and “never” lest an exception be pointed out by the cross-examining lawyer to impair the witness’s credibility. 7. Avoid excessive use of jargon. The novice may be required to use
technical terms, but she should strive for a conversational tone, being prepared to explain these terms to make lay persons comfortable that they understand the testimony. 8. Beware of the ambiguous question. The novice should seek clarification
of an ambiguous question and treat it as an opportunity to explain her position further, rather than answering an ambiguous question. 9. Find opportunities to explain. The novice should be shown that
there are opportunities to explain her opinions or analysis when counsel asks: “How can you explain the fact that . . .” or “Why did you use method X . . .” 10. Use examples and analogies. The novice should be encouraged to
attempt to use examples and analogies in order to make her testimony more easily understood. 11. Be confident, not confrontational. The expert should appear confident,
not be easily shaken, but not appear argumentative in response to cross- examination. Arrogance and condescension should be avoided. 12. Be willing to make reasonable concessions, but not excessively so. The novice should be reminded that
she can make concessions about the limits of her ability to study the problem, or concede agreement with some (but not all) of what an opposing expert has said, but not be forced by the cross-examining lawyer to go further than she truly believes. Care should be taken not to
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wkramer@k2law.com 310-829-6063 ext. 12 |
www.kramermediate.com
JULY 2011 The Advocate Magazine — 83
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