November, 2009
Feature
Inspection News and Views from the American Society of Home Inspectors



The Expert: Expert Testimony

LAWRENCE UBELL AND ALVIN UBELL

In part I, the Ubells described and defined the role of an expert witness and provided some guidelines for those who are considering serving in this capacity. The article closed by discussing the possibility of being required to write a report. In part II, the Ubells cover some pre-trial activities and the trial.


Opposing counsel’s expert


From time to time, as an expert witness, you may be asked to critique the opposing counsel’s expert report, which may also include a critique of your report. Your response may not require a written report. However, if your attorney requests such a report, stick to the facts of the case in question. Just criticize the data and information in the report, and don’t go outside the report or add anything that was left out. Don’t criticize the expertise of the opposing expert in writing. Doing so could backfire. There is no way for you to know his or her total life experience or expertise in the mater disputed. Personal types of criticizing, such as saying the expert is not qualified in the discipline under dispute, could give the opposing counsel an opportunity to criticize you in open court by asking, “You don’t know anything about my expert, do you?” It’s possible your criticism of the other expert could open the door for the opposing attorney to read that expert’s entire CV to the court. Criticizing an expert’s expertise is the attorney’s job, not yours. Just stick to the facts.

Affidavit


On occasion, you may be requested to sign an affidavit on your findings. The attorney will prepare an affidavit for your signature. Read it very carefully. You may have to defend what you signed at trial. If the affidavit is not completely, totally and absolutely truthful, at trial the opposing counsel may make you feel and look like a liar. Therefore, if the writer embellished your expertise or changed some of your findings, or if you are uncomfortable with anything written for your signature, you have a few choices. You can call the lawyer and ask him to rewrite it. You may rewrite it yourself. You may edit the document and initial each of the changes. But the lawyer may not want an edited document because ultimately, it will be in the hands of the adversary. When the affidavit is satisfactory, sign or initial each page and sign the last page in front of a notary public who will take your oath. Keep a copy of the notarized, completed affidavit when you return it to the engaging lawyer.

Conferences


There probably will be a few conferences between you and the attorney to discuss your thoughts and findings. The attorney will try to explain his or her “modus operandi,” covering the procedure, strategy and the desired outcome or what is to be accomplished by these proceedings. Never forget: you are not the attorney. It is not about you or your ego; the attorney of record is the conductor. You are just one of the many musicians in the orchestration of the matter in dispute. Don’t try to outsmart or upstage any of the attorneys. If you do, you will be sorry.

Pre-trial conference


Here again, you will be discussing the “modus operandi” of the case that is about to go to trial. This type of conference should never be held in the courthouse on the day of trial. The attorney will have many things to take care of while trying to control a client, who probably never before has testified. Your conference should take place at least a day or two before you appear at trial. The meeting should be held at the lawyer’s or your office or someplace where you have each other’s undivided attention. Listen to the attorney and don’t interrupt. Saying, “I know! I know!” will tell the attorney that maybe, you don’t know. Let the attorney finish his or her sentences, waiting to speak until he or she stops or asks a question. Give information only if it is relevant to what is being discussed. The attorney may be using you as an audience to rehearse his or her trial presentation. Take notes so you can ask questions and render your opinion when asked.

Qualifying expert at trial

The pre-trial conference is the time to prepare the list of questions that will qualify you as expert. All the questions and answers should be short, to the point and should support the expertise required for the court to accept you as an expert for the issue before the judge and/or jury. Immediately prior to testifying, give the attorney another copy of the questions, which may include:
  • What do you do for a living?
  • How many years have you been at your profession?
  • What is the name of the firm that you are working for?
  • How long have you worked for them?
  • What level of school have you achieved?
  • What professional degrees have you received?
  • Do you have any professional licenses?
  • Have you authored any papers or books on the subject at issue?
  • Have you received any awards pertaining to the subject at issue?
  • When was the last time you utilized your expertise or your profession?
  • How many times have you testified in a court of law?
  • Are you getting paid to be here today?

Many more questions can be asked to establish your expertise; therefore, you and your trial attorney should create a comprehensive list of what should be asked. You and your attorney also should make another list of questions, ones you both believe will be asked by the opposing consul, so you are well prepared to answer them appropriately.

Sometimes, at the end of the expert qualification session, your trial attorney will request that the court qualify you, and then the opposing consul may make a request for voir dire (to cross-examine your expertise).

The hypothetical question


The pre-trial conference generally is the best time to discuss and/or construct the hypothetical question. A hypothetical question is a presentation or scenario put to the witness by the trial lawyer. It consists of all the events and evidence that were presented during the trial and that have occurred before you got on the witness stand, to which you may not be privy. The trial lawyer uses this technique to ensure that a witness and the jury know all of the facts presented. This is to make certain that your opinion is based on all of the events, facts and conditions that relate to or pertain to your expertise. In turn, this technique strengthens your opinion. If it is not done, the jury may believe the expert doesn’t know what he or she is talking about because the expert didn’t hear the plaintiff’s or the defendant’s testimony. Some attorneys lack the skills necessary to present a hypothetical. If it is rejected by counsel, don’t be concerned. It is the lawyer’s game, not yours.

The trial

The courtroom, the judge in the black robe and all the trappings are designed to make all who come before the court respect the judge, the courtroom, the jury and the proceedings. Be quiet! This is the time to be seen and not heard until you are called to the witness stand for your testimony.

Your demeanor

Look and act the part. Be appropriately dressed. Look as professional as the lawyers. Be well-groomed. Show respect for the court and the proceeding. By your appearance, let all know you are there for the business of the court. Don’t act or dress flamboyantly. This might hurt your client’s case. When the judge or the jury enter the courtroom, stand up and show respect. Laughter is not advisable or permitted. The business of the court is serious. When on the stand, whether it is the bailiff, the judge or counsel who is talking to you, look him in the eye and answer all questions and statements directly, distinctly, loudly and clearly. Be slow-paced, but not too slow. Be certain everyone can hear and understand what you are saying. Don’t mumble! Everyone in the courtroom must hear what you have to say, especially the jury and the court reporter. Speaking clearly, distinctly and with energy gives you the persona of knowledge, truthfulness and trust. Understand that, up until now, you were an advocate for your client, but as soon as you are sworn in to testify, the advocacy is no longer present. The truth is all that matters. You now belong to the court, the judge and the jury.

Be prepared

Before trial, read and know your entire file.

Sort the documents in the order that you believe the trial will move. On the outside of your file, list the names of all parties and persons and the dates of all the events that took place. All should coincide with your report, affidavit, photographs and the other documents in your file. Think about what kind of questions the opposing counsel most likely will ask and make a list. Failing to prepare is preparing to fail!

Warning: Beware of using inappropriate terms.

Your attorney, the opposing counsel and the judge might laugh at you and correct you in front of the jury. Use only words, terms or phrases you are sure of and familiar with. Saying one thing and meaning something else can and most likely will destroy all the preparation you and your attorney worked on for many months.

Direct testimony

Direct testimony is when the attorney who engaged you is asking the questions. He or she is not permitted to lead you to the answer. For example, if the answer is included in the question, such as: “Your name is Joe the plumber, isn’t it?” the opposing counsel will rise and tell the judge, “I object to form!” The correct form is a simple, “What is your name?”

The answers to most of the questions will be within your knowledge because you and the trial lawyer have gone over them many times. All your answers should be in your own words. Don’t let it sound like you rehearsed and memorized a script.

Cross-examination

On the other hand, the opposing counsel can and has the right to lead you into the answer he or she wants to hear, e.g., “Isn’t it true that your name is not really Joe the plumber, but actually Ben Franklin the printer?” The opposing counsel will try to discredit you or bait you into saying or doing something about the case you should not say or do in a courtroom or to say something that is not true, which can hurt your side of the case and help the other. On the other hand, some talented and clever trial lawyers will try to use you to help their case by using you as their own expert witness. This is the time you will need all your faculties to ignore or fend off such an attempt in a calm or clever way. But don’t be too clever. Don’t interrupt counsel’s question. Let the question be completed. Then, pause a second or two. This will give your client’s lawyer the opportunity to object. If a comment is insulting and derogatory, say nothing and turn to the judge for help. If, during cross-examination, a question is asked that needs a direct answer and that answer may hurt your client, don’t be evasive. Answer it directly and candidly. If you don’t, all the good work laid down during the direct-testimony phase will be washed away. The jury will think you’re a paid shill. There is sometimes a tendency to over-explain when you think the court does not understand what you are talking about. A wise friend told me, “The enemy of good is better.” When you try to improve your explanation, you could mix up your original thought and give the impression that you do not understand the issue. Keep your answers short and to the point.

Ego

This proceeding is not about you! It is about the client’s problem. The problem needs your help in the matter before the court. You can help that person or you can destroy what the client needs because you got insulted or lost your composure. Act like a professional. Be above reproach and disregard anything that you might take to be an insult. Laugh it off mentally with a smile. You know what you know about the subject matter at hand. Also, you know you probably know more about the subject than anyone else in the courtroom, including the judge, your lawyer and the opposing consul.

The authors of this paper thank the Hon. Judge Jules L. Spodek, N.Y. State Supreme Court, for his commentary.

References
Black’s Law Dictionary, West Publishing Co.


This article is from a presentation to the Brooklyn Chapter of The American Institute of Architects (AIA).

Copyright © 2009 Ubell Enterprises, Inc. Printed with permission from Accurate Building Inspectors®.