When an expert witness testifies at trial, he or she builds a relationship with the jury. In the courtroom, perception is reality, and there are a number of different factors and subtle details that can affect a jury’s perception of an expert witness. We reached out to some “experts on experts” to put together a list of important things for expert witnesses to remember to make a great impression on the jury.
Appearance Matters
The term “expert witness” denotes professionalism, and introducing a witness as an expert has a real impact on the jury before the testimony even begins. Besides the substance of an expert’s testimony, there are a huge collection of visual and nonverbal cues that can contribute to the jury’s assessment of a witness’s credibility. The way in which an expert’s opinion is presented is almost as important as the opinion itself. In a unique subset of social science known as psycholegal research, there exists a plethora of literature describing how factors like dress, body language, and attitude impact the jury’s feelings about the expert. These factors, if not acknowledged and accounted for, can damage an expert’s testimony.
Body Language
When an expert is called to the stand and sits in the witness box, there is only so much of the witness that is physically exposed. Nevertheless, an expert’s body language, including his demeanor and attitude, are part of an expert’s image that jurors subconsciously rely on when evaluating an expert’s credibility. As a result, it is important that experts avoid distracting or overly animated facial expressions or movements. In the context of litigation, an expert is present to offer a professional, sound, and unbiased opinion. Making exaggerated facial expressions or overly enthusiastic gestures may be off-putting to a jury, no matter how honest the underlying intention.
Body language expert Susan Constantine explains that during an expert’s testimony, the most important thing is congruence in their body language. This means that every movement or hand gesture should mirror the substance of what an expert is saying. The best way for experts to do this to is to limit hand gestures and use them only
to highlight key points and specific moments. This way, greater attention is drawn to these key points, and an expert’s delivery has a greater overall impact. Constantine explains that, when speaking to the public, Presidents and other public figures tend to use their dominant hands to emphasize points they want to endorse and the opposite hand when discussing a contrary or adversarial viewpoint. Nevertheless, using too many hand gestures can detract from the most important parts of testimony, and carries the risk of distracting the jury and minimizing the significance of what an expert is saying.
Constantine also notes that an expert should not move or shift around too much while sitting in the witness box, “Remember, that since jurors can only see the part of a witness that is exposed while on the stand, even slight shifts in the lower body that the jury can’t see will affect movement in the upper body, such as in the chest and shoulders. Constant shifting can indicate anxiousness or impatience and can be very distracting.”
According to Conastantine, part of avoiding distracting movements and gestures includes keeping the hands away from the face. “An expert witness especially should focus on keeping hands in a neutral spot and most definitely away from the face. This kind of nervous tick is precisely what will take jurors’ attention away from the important details of expert’s testimony and draw unnecessary attention to what the expert is doing with their hands.” According to Constantine, experts should never have their hands above the chin, except for those moments where hand gestures are important for emphasis.
Demeanor
CEO and Jury Research Director of Litigation Insights Dr. Merrie Jo Pitera explains that demeanor is incredibly important in terms of how jurors assess expert credibility. “Demeanor,” in this sense, is a combination of verbal and nonverbal cues that contribute to the overall attitude that an expert appears to possess and that jurors perceive.
The risk that an expert may appear too arrogant is one of the biggest problems faced by expert witnesses and the attorneys who retain them. According to Dr. Pitera, “experts should always maintain their professionalism, and jurors discern demeanor mostly by an expert’s tone of voice. Jurors dislike being spoken down to and often times experts
can be condescending despite honest intentions, and this will result in a negative bias against the expert regardless of their substantive testimony.”
In a compelling article by senior trial consultant and Juryology founder Rich Matthews, this difference in demeanor is highlighted as what separates a great expert from a great expert witness. After interviewing jurors at the end of a trial, Matthews claims that they found the expert in that case to be “off-putting as a person” and “too full of herself.” Sometimes, given an expert’s proficiency in esoteric material, it is easy for him or her to appear arrogant when explaining that subject matter to a group of individuals who are completely unfamiliar with it. However, failure to curtail this attitude carries a real risk of turning off jurors. It is common sense that people dislike being spoken down to. Appearing condescending will not only hurt the substance of expert testimony, but possibly the entire case.
Dr. Amy Singer, President and CEO of Trial Consultants, Inc. suggests that the best way to avoid appearing too arrogant is to assume the role of a teacher- after all, this is precisely the expert’s role in any litigation. According to Dr. Singer, “experts should channel their ‘inner professors’ and adopt a mentality that they are teaching individuals about a particular subject.” She describes the problem of avoiding “knowledge bias,” which is the tendency of experts to assume the jury is knowledgeable in their area of expertise, which results in a condescending tone when experts remember that this is not the case. “The best experts are the ones who can be like teachers,” Singer says, “A great strategy that I suggest is that experts picture the best teacher they can remember in their lives and try to emulate the parts of the teaching style that made those teachers so engaging and memorable.”
Dr. Pitera likewise points out that avoiding testimony that comes off as arrogant isn’t the sole responsibility of the expert. A counselor’s instruction plays an important role in the expert’s overall demeanor, especially during trial preparation, when the attorney is in the best position to evaluate the witness and how jurors may perceive him or her. This requires teamwork – both the expert and the attorney must explore different ways of phrasing ideas and taking a more diplomatic approach. For example, Dr. Pitera highlights the difference in an expert making a statement like “I don’t expect a juror to understand something so difficult” versus “this can be very difficult to understand given the nature of the subject.”
Given the role of an expert witness in litigation and their testimony about complex subjects, experts can also run the risk of appearing too serious and mechanical. Though it is true that an expert is there to teach, appearing too rigid can alienate the jury. It is important for experts to remember that jurors are people. Dr. Pitera and Susan Constantine both suggest keeping a steady tone of voice that is clear and concise – however that doesn’t mean an expert’s tone should be monotonous. Rather, inflections, natural shifts in tone, and overall fluidity of language that are part of natural human dialogue and these elements should all be part of expert witness’ testimony. Moreover, an expert witness should give off a personable and easy-going attitude instead of appearing rigid, which can negatively impact a juror’s perception of their credibility.
Sometimes when the tensions are high in the courtroom, it might help to “loosen up” a bit and regain some comfort, but there is a fine line that an expert must be careful not to cross. In trying to appeal to a juror’s humor through a joke or lighthearted comment, an expert witness runs the grave risk that jurors will not take his overall testimony seriously, despite the validity of the expert’s opinion.
Interaction with Opposing Counsel
Even if an expert does well on direct examination, the way an expert handles cross examination can place them at risk for damaging their credibility in the eyes of the jurors. It is natural for witnesses to feel challenged and undermined on cross-examination (and to adopt a more adversarial attitude) but experts should work to avoid this. As Dr. Singer points out, “an expert is not there to engage in a power play with the opposing attorney. The courtroom is the attorney’s arena and appearing combative in this way will only help opposing counsel’s goal of weakening the expert’s credibility.” In terms of body language, Mrs. Constantine says that during cross, “experts can avoid a combative posture by not leaning forward with chins pointed somewhat upwards. Experts should have their shoulders squared to and aligned with opposing counsel, responding to them straight on and in a direct manner. This demonstrates confidence and respect.”
Professional Background and Online Presence
Experts know that their professional work is accessible to the public and subject to scrutiny by critics and scholars with opposing viewpoints. However, people also make judgments about others based on social media profiles online, and experts who have
social media pages are not exceptions to this trend. As a matter of caution, experts should not post anything on their social media profiles that could be raised as an issue and call their credibility into question.
Expert witnesses have an incredibly important role when testifying at trial. Tasked with educating a panel of jurors about what is usually a technical or scientific matter, experts must make their testimony simple, helpful, and engaging. However, a juror’s perception of an expert is often shaped by a combination of factors that are peripheral to the actual testimony itself.