Presenting Expert Testimony
Presenting Expert Testimony
Presenting Expert Testimony
NDLScholarship
1991
Part of the Legal History Commons, and the Legal Profession Commons
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James H. Seckinger, Presenting Expert Testimony, 15 Am. J. Trial Advoc. 215 (1991-1992).
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Presenting Expert Testimony
James H. Seckingert
Introduction
Copyright Q 1991 by James H. Seckinger and the National Institute for Trial Advocacy
(NITA). This Commentary, or any parts or portions thereof, may not be reproduced without
the express permission of James H. Seckinger and the National Institute of Trial Advocacy.
t B.S. (1964), St. John's University, Minnesota; M.S. (1968), Vanderbilt University; J.D.
(1968), University of Notre Dame. Professor Seckinger is Director of the National Institute
for Trial Advocacy and a Professor of Law at Notre Dame Law School. The author acknowledges
and expresses appreciation to Sheila R. Block, Barrister, Tory Tory DesLauriers & Binnington,
Toronto, Canada, and Steven Lubet, Professor of Law, Northwestern University School of Law,
Chicago, Illinois, for their insights and contributions to this Commentary. The Commentary
was significantly improved by their comments and suggestions.
This paper is dedicated to trial lawyers, who devote their professional lives to resolving
disputes peaceably through the common law adversary system. For trial lawyers, nothing is
more precious than our common law adversary system, which is the greatest vehicle ever developed
for resolving disputes, seeking justice and maintaining a peaceful and orderly society wherein
the rights of all are respected.
AMERICAN Jou.NAL Op TRiAL ADVOCACY [Vol. 15:215
A. An Organizational Structure
for Direct Examination of an Expert Witness
One of the most effective tools for preparing a competent direct
examination is an organizational structure for the examination. This
is especially true when the subject of the expert's direct testimony is
his expertise, which is by definition, beyond the understanding of lay-
persons. An organizational structure assists the lawyer and the witness
in presenting persuasive and effective expert testimony.
The following seven touchstones provide a suggested organizational
structure for the direct examination of an expert witness:
19911 EXPERT TESTIMONY
1. Insert a summary statement describing the investigation or examination that the expert
was retained to perform. For example, investigate the costs incurred by Pierce Electric due
to the overrun of the construction contract, or analyze the design of the hydraulic system on
the DC-10, or diagnose the injuries to plaintiff caused by the toxin xyzlet.
2. Insert a summary statement of the expert's opinion (for example, the total costs incurred
by Pierce Electric due to the delays in the construction project caused by the defendant, the
physical injuries caused to plaintiff by the toxins xyzlet, or whether the design of the hydraulic
system in the DC-1O was defective).
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
(a) Education;
(b) Special Training;
(c) Experience;
(d) License/Certification;
(e) Publications;
(f) Teaching Experience;
(g) Experience as an Expert Witness/Prior In-Court Testimony.
1991] EXPERT TEslMONy
For each topic listed above, the examining attorney should elicit as
much information as possible on qualifications that are relevant to the
issues in the case.
Medical and scientific experts typically have specialties and even sub-
specialties, and their particular area of expertise should be explained
to the fact-finder. Indeed, all expert witnesses should spend some time
explaining their area of expertise and how it relates to the case in
question.
D. Touchstone #3:
Tender Witness as an Expert in a Particular Field
The lawyer has the opportunity to tender the witness to the court as
an expert within a particular field of expertise. After eliciting the witness's
qualifications, the lawyer tenders the witness as an expert by making
the following statement to the court: "If the court please, I tender John
Doe as an expert in _ ' The court will then turn to opposing
_
E. Touchstone #4:
Assignment and Overview of Basis for Opinion
After the witness has been qualified as an expert, tendered and received
by the court, the direct examination should focus on the expert's
knowledge of the case. This part of the examination can be broken down
into two major categories: (1) the expert's assignment and (2) the expert's
basis for reaching his opinion.
The first step is to elicit the expert witness's reasons for appearing
in court and to handle the issue of compensation. A sample series of
questions are as follows:
• 222 AMERICAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
expert witnesses and thereby forego the need for two organizational
structures--one structure when the basis for the opinion is required before
the opinion and a different structure when the basis is permitted after
the opinion.
The objective of the Overview Approach is to set forth the underlying
basis for the expert's opinion only to the extent necessary: (1) to introduce
the fact-finder to what the expert did, i.e. the methodology he used and
the data he analyzed, and (2) to lay the foundation for making the expert's
opinion credible to the fact-finder. In this portion of the direct
examination, the Overview Approach focuses solely on the methodology
used and the data analyzed by the expert in reaching his opinion. It
is important that the examining lawyer not let the fact-finder's attention
wander or get lost in a maze of data and information before the expert's
opinion is elicited. The fact-finder needs the opinion as a framework
for the underlying information. Therefore, reserve the explanation and
explication of the methodology and data used by the expert until the
teaching portion of the direct examination.
The following are examples of questions giving an overview of the
basis for the expert's opinion:
(a) You have told us that your assignment in this case was to
.' How did you carry out that assignment?
or-
What investigation or research did you conduct for that
assignment?
(b) What methodology did you use for your investigation or research?
(c) Is that methodology customarily used by experts in your field?8
(d) Briefly explain the methodology you used and why it is applicable
to this case.
(e) What data did you analyze?
(f) Is that type of data customarily relied on by experts in your
field? 9
(g) Was the data analyzed sufficient for the methodology used on
this project?
Note how simple, clear, and straightforward the above sample topics
for questions are for both the expert's assignment and the overview
of the basis for the opinions. Keep it that Way in this portion of the
direct examination before the opinion is elicited. Although the
methodology chosen by the expert goes to the expert's core thesis in
the case, which is very important for the validity of the expert's opinion,
the detail should be left for later. In the overview portion of the direct
examination and explication of the methodology for later in the teaching
section of the examination. Likewise for data collection, which also
requires data explanation, save the explanation for the teaching section
of the examination.
3. Assumptions
10. For a discussion of the teaching or explanatory part of the direct examination, see
infra Section H.
11. For a discussion of the elements of a valid expert opinion, see infra Part II, Section
C(3).
12. See section H for a discussion of the teaching or explanatory portion of the direct
examination. Likewise for Data Collection, which also requires Data Explanation, save the
explanation for the teaching section of the examination.
1991] EXPERT TEsniMONY
The examining lawyer must determine what data the expert can rely
on to reach an admissible opinion. Thus, the admissibility of the expert's
ultimate opinion must be analyzed carefully regardless of where in the
examination the underlying data for the opinion is discussed. If the expert
cannot use the data to formulate an admissible opinion, then it may
not be elicited in any portion of the examination.
In order to determine the admissibility of the underlying data and
the expert's opinion, the examining lawyer must have an excellent
working knowledge of the rules of evidence, specifically the rules
governing expert witnesses. The permissible data that may be used by
an expert in reaching an admissible opinion can be divided into two
major categories: (1) what the expert did personally and (2) what the
expert relied upon.
What the expert did personally is admissible data under the rules of
evidence in even the most-restrictive common law jurisdiction because
the expert has personal knowledge and because the testimony presents
no hearsay problems. Even then, however, the underlying data should
be carefully analyzed to determine if there are implicit hearsay or double
hearsay problems. For example, the expert performed the test, but in
doing so he relied on tests performed by other scientists and on a journal
article on the procedures for conducting such tests. In a restrictive
common law jurisdiction, the examining attorney would need to find
a hearsay exception for the admissibility of that data. In a more liberal
jurisdiction the data would be admissible if it was of the type customarily
relied upon by experts in that field.'
The second major category of data used by experts in reaching an
opinion is information provided by others, upon which the expert relied.
This type of data is information received by the expert from others either
orally or in writing. As a result, by definition, such information presents
classic hearsay problems under the common law rules of evidence. To
avoid such hearsay problems under the common law, the other individuals
that supplied the information had to be called as witnesses or a hearsay
exception had to be found. To alleviate undue expense, both in terms
of cost and time, the courts often strained the limits of the hearsay
exception to accommodate testimony by experts in a modem technological
society.
To accommodate the hearsay rule for information that the expert relied
upon, but received from others, the other individuals had to be called
as witnesses. The testifying expert had to sit through the trial to listen
to the "other evidence" or receive the "other evidence" in the form of
a hypothetical question. This procedure is not only cumbersome, it is
also a fiction because it assumes that the expert listens to the "other
evidence" at trial and then formulates an opinion which he presents
to the fact-finder. In reality, the expert has done all his work before
trial, and sitting listening to the "other evidence" is merely a fiction
to accommodate the hearsay rule.
The hypothetical question can also be extremely cumbersome. Strictly
enforced, the hypothetical question must include all of the relevant facts
relied upon by the expert in reaching his opinion, andit may not assume
facts that have not already been received in evidence. Under the pre-
federal rules, there were numerous instances where the stating of a
hypothetical question and the re-stating after objection took days.
Furthermore, there were countless appeals on the sufficiency of the
hypothetical question. A practice then developed of requiring the
hypothetical question to be written out in advance and approved by the
court at a pre-trial conference. However, even that procedure did not
solve all the difficulties. Neither judges nor trial lawyers have lamented
the demise of the hypothetical question under the Federal Rules of
Evidence. With respect to the testimony of expert witnesses, it has been
acclaimed as one of the great steps forward in modem evidence law.
Rule 703 of the Federal Rules of Evidence14 confronted the problems
associated with the application of the hearsay rule to expert testimony
Under the Federal Rules of Evidence, data that an expert may use
in reaching an opinion includes any and all data (1) that the expert
personally collected or (2) that the expert relied upon which was received
from others, but only if it is the type of data customarily relied upon
by experts in a particular field of expertise.18 Hypothetical questions
are no longer required, and the fiction of having the expert sit through
the entire trial and then use the facts so perceived as a basis for his
opinion is alleviated. Under the Federal Rules of Evidence, judicial
acceptance of expert testimony is in accord with the realities of modem
society."
1. Multiple Opinions
In many cases, the expert will testify to more than one opinion. The
examining attorney should separate each opinion and elicit them seriatim.
For example, when a medical expert witness testifies about an injury
to a person, four opinion questions are typically asked: (1) diagnosis,
(2) condition, (3) causation, and (4) prognosis.
21. See Tomello v. Deligiannis Bros., 180 F.2d 553 (7th Cir. 1950; Lieberthal v. Glen
Falls Indem. Co., 174 F.2d 638 (7th Cir. 1949).
22. 293 F. 1013, 1014 (D.C. Cir. 1923).
23. Frye, 293 F. at 1014.
24. See, e.g., State v. Catanese, 362 So. 2d 975 (La. 1979).
AmEtxcAN JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
demise of the Frye standard under the Federal Rules of Evidence may
eliminate the need for inclusion of the phrase "to a reasonable degree
of certainty within the expert's profession."
In addition to looking at the evidentiary requirements, the examining
lawyer should consider trial tactics and persuasion in deciding whether
to include the phrase "to a reasonable degree of certainty within the
expert's profession" within the opinion question. This language signifies
to the fact-finder that the opinion question is different and sets it apart
from all other testimony during the trial. Furthermore, the phrase builds
up the expert's opinion by making it not solely the individual expert's
opinion but enveloping the expert within his entire profession.
If the "reasonable degree of certainty" phrase is used, it should be
asked as follows:
Do you have an opinion (pause) to a reasonable degree of certainty
within your profession (pause) as to ?25
4. Hypothetical Question
G. Touchstone #6:
Explanation of Opinion-Teaching
35. This is acritical element of the teaching process because the fact-finder must understand
and adopt the expert's core thesis and methodology as a prerequisite to accepting the expert's
opinion.
36. The expert should explain her investigation and the data relied on in reaching her
opinion.
37. In order to satisfy Rule 703, point out that this type of data is customarily relied on
by experts in this field of expertise. Lawyers typically use charts, graphs, and other visual aids
to summarize and present effectively the data relied on by the expert.
38. Lawyers universally rely very heavily on the use of charts, graphs and other visual
aids to assist the expert in data explanation and analysis. For lawyers the use of visual aids
is an integral part of the teaching process.
AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
2. Assumptions
39. The psychological principle of primacy is that persons will believe and adhere most
strongly to their initial beliefs. Trial lawyers have used this psychological principle to form
the organizational technique of presenting first their best and most persuasive facts, issues,
or argument Lawyers uniformly refer to this adaptation of the psychological principle of primacy
as the "doctrine of primacy."
1991] EXPERT TESTIMONY
3. Anticipating Cross-Examination
40. Scientist/technical person and not a public speaker, researcher not an actor, or little
experience in testifying and therefore nervous.
AMERICAN JOURNAL OF.TRIAL ADVOCACY [Vol. 15:215
To the extent that the expert witness has a valid and defensible opinion,
all of the above areas of potential cross-examination can be effectively
handled during the direct examination by placing them in their proper
contextual framework and thereby diffusing the ensuing cross-examination.
4. Theory Differentiation
If the opposing party has retained its own expert witness, it is essential,
at some point during the direct examination of that expert witness, that
the examining attorney differentiate and attack the theory underlying
the opposing expert's opinion. This process is referred to as Theory
Differentiation, and it is a critical part of presenting persuasive and
effective expert testimony. The fact-finder will believe the expert who
presents the most persuasive "theory" supporting his opinion. For purposes
of this discussion, "theory" is used in an expansive sense to encompass
the thesis and methodology chosen by the expert, the expert's investigation
and data analysis, and the assumptions made by the expert.
Theory differentiation requires a clear and careful analysis of the two
competing expert opinions, and the underlying basis for each, in order
to determine:
The structure of the trial suggests that the plaintiff's expert witness
should explain the theory differentiation at the end of the testimony.
The defendant's expert witness, however, might be better off making
this explanation immediately following the qualifications but before
presenting his own opinion and methodology. Ultimately this decision
is a matter of judgment. As a result, the decision will depend upon many
factors, including the experience level of both the examining lawyer
and the expert witness. Experienced trial counsel and experienced experts
are capable of handling the testimony and the structure in an
unconventional manner.
When possible, an effective advocate will "start strong and end strong."
Thus, the expert's explanation of his opinion should end on a high note.
To conclude his explanation of the opinion, the expert should state the
principal reasons why he is confident of his opinion, including the
underlying thesis and methodology, investigation and research, data
analysis and assumptions. To be persuasive and effective, this concluding
rationale must be a precise and succinct synthesis and not simply a re-
stating of prior testimony.
A question with which to introduce the concluding rationale for the
expert's opinion is: "You have given us your opinion that (insert a
summary of the opinion), why are you so confident of that opinion?"
AmE IAN
JOURNAL OF TRiAL ADVOCACY [Vol. 15:215
H. Touchstone #7:
Conclusion-End Strong
L Pre-Trial Preparation
41. If the expert has given only one opinion, see Section G(5), supra, for a concluding
rationale that will end the examination on a high note.
1991] EXPERT TEsTMONY
The advocate should examine the issues in the case through an analysis
of the causes of action or claims for relief and the affirmative defenses
in the case. In conducting this case analysis, the advocate should diagram
the elements of each cause of action and defense. Once again, the same
three questions arise: (1) Is an expert witness absolutely necessary? (2)
Will an expert witness be of some assistance to the fact-finder? or (3)
Is an expert witness not needed?42
An example of this case analysis process in a toxic tort case is: (1)
an expert is absolutely necessary indetermining causation; (2) an expert
may be of some assistance in determining the damages to the plaintiff;
and (3) an expert may be needed on the issue of the duty owed by the
defendant to the plaintiff because of human factors and/or. industry
standards.
Another example is a claim for damages in a construction cost overrun
case: (1) expert testimony may be absolutely necessary on the issue
of the cause for the cost overrun; (2) expert testimony will be of some
assistance to the fact-finder in determining the total amount of costs
incurred by the assistance to the fact-finder on the interpretation of terms
42. An example of this case analysis process in a toxic tort case is: (a) an expert is absolutely
necessary in determining causation; (b)an expert witness may be of some assistance in determining
the damages to the plaintiff; and (c) an expert witness may be needed on the issue of the duty
owed by the defendant to the plaintiff because of human factors and/or industry standards.
Another example is a claim for damages in a construction cost overrun case: (a) expert
testimony may be absolutely necessary on the issue of the cause for the cost overrun; (b) expert
testimony will be of some assistance to the fact-fider in determining the total amount of costs
incurred by the plaintiff during the overrun; (c) expert testimony may or may not be of assistance
to the fact-finder on the interpretation of terms of the contract and (d) expert testimony is
not necessary nor will it be permitted on the legal duties and responsibilities of each party
under the contract.
1991] EXPERT TESTIMONY
of the contract; and (3) expert testimony is not necessary nor will it
be permitted on the legal duties and responsibilities of each party under
the contract.
In criminal cases, identification is an essential element of the crime,
and expert testimony is absolutely necessary to interpret fingerprints,
voiceprints, DNA testing, and other forensic tests. Furthermore, some
courts have permitted expert testimony on whether the eyewitness had
the ability to perceive and identify the defendant.
43. Examples are scientific or technical terms within the prior art in a patent case or a
licensing agreement, slang or words of art in drug deals or other criminal activities, and terms
AMEICAN JOURNAL oF TRIAL ADVOCACY [Val. 15:215
the use of expert testimony on those facts and issues that are the "cutting
edges" in the case. The only exception may be when the use of expert
testimony in either the preparation-stage or the trial-stage may make
a contested fact or issue into an undisputed fact or issue that will
ultimately save money and foster judicial economy.
47. For example, consider a lawsuit for business losses from a breach of contract. Lay
AMERCAN JOURNAL OF TRIAL ADVOCACY [Vol. 15:215
2. Finding an Expert
persons within the company may prove business losses with profit and loss statements and
the balance sheet. Nevertheless, the controller should also be interviewed to determine that
all of the areas of damage are taken into account. The controller is an expert in accounting
and financial dealings and may be a very valuable resource to explain aspects of the case and
also to ensure that all the areas of damages are analyzed. The controller may also lead one"
to an outside financial consultant who has a specialized area of expertise in damage and loss
analyses.
48. Counsel should be aware, however, that an exception has evolved to the rule prohibiting
discovery of a non-testifying expert's work. It is a narrow exception that must meet a two-pronged
test of (a) extraordinary need by the opponent and (b) unavailability of the information through
other means.
1991] EXPERT TESTIMONY
(a) The Client. Although the advocate may not want his client's
employees or associates testifying in the case, they may be a
ready source for contacting experts outside of the organization.
(b) The Law Firm. Most litigation law films have developed a wealth
of experience with regard to experts which should be tapped.
(c) Other Lawyers Within the Practice Area. Through this source
the attorney may receive names of experts and also information
on how they performed in other cases.
(d) Surveying the Literature in a Particular Area of Expertise
(e) Universities
(f) Research Institutes and Laboratories
(g) Professional Organization for that Particular Area of Expertise
(h) Consulting Group. Some experts have formed consulting groups
to assist lawyers in litigation.
(i) Imagination and Investigation. The sources for finding experts
are limited only by a lawyer's imagination and investigative skills.
If the advocate is having trouble finding the appropriate expert,
*he should use his imagination and stretch himself to think of
possible new sources for an expert.
In most litigation settings, however, the lawyer can choose the expert
witness who will testify in the case. Assuming that the lawyer has done
a thorough search of the candidates, there will then be a pool of experts
to choose from, and the next step in the process is to select the best
possible expert for the case.
Selection of the expert is one of the most important parts of the case,
because an expert's testimony at trial can often be determinative of the
outcome of the case. Selecting an expert should be a thoughtful and
careful process; the time spent at this stage of the case is well worth
it and if the selection is carefully done, it will pay many dividends in
case preparation and at trial.
There are six factors to consider in the process of selecting the best
expert for a particular case.
There are several factors to consider when evaluating the prior litigation
and courtroom experience of a potential expert witness. Some experts
suffer from the "professional witness syndrome." Others, however, appear
1991] EXPERT TESTIMONY
(e) Cost
and specialized knowledge, (3) the quality of the expert's opinion, (4)
the organization of the expert testimony, and (5) the expert's ability
to educate the fact-finder.
1. Pre-Trial Preparation
(a) Assignment
The lawyer informs the expert of the assignment and supplies the
expert with the information necessary for the expert to conduct the
investigation. The lawyer should also inform the expert of the scope
of the assignment and the specific matters to be investigated. At this
stage of the working relationship, the lawyer should provide only broad
guidelines to the expert so that the expert has the freedom to conduct
a thorough and independent investigation. The lawyer's assignment to
the expert should not be so narrow that it cuts off a potential source
of valuable information, nor should it be so broad that it does not provide
sufficient guidance to the expert. It is anticipated that the lawyer and
expert will meet frequently to refine the scope of the investigation,
exchange materials and background information and discuss legal issues.
In the working relationship between the lawyer and the expert, the
expert also educates the lawyer on the technical matters involved in
the case. The lawyer needs to know the technical matters in order to
understand the case better and prepare a cross-examination of the
opponent's expert. The lawyer must become completely conversant with
the technical information and, for the purposes of the narrow confines
of a particular case, become an expert in his own right Trial lawyers
are often referred to as having "bathtub minds." A lawyer becomes
involved in a case concerning expert engineers and learns everything
there is to know about that particular area of engineering; the bathtub
is filled. The case is tried, and with time the information slowly drains
away leaving a ring of technical expertise for future cases or cocktail
discussions.
The lawyer and expert must work together to organize the follow-up
investigation and research, to analyze the data, and to refine the opinion.
The expert's work must be analyzed and re-analyzed, examined and
cross-examined, in order to present persuasively the expert's opinion
and the underlying basis for that opinion and to survive the rigors of
cross-examination.
1991] EXPERT TESTIONY
After the lawyer and the expert have worked together analyzing the
data and refining the opinion, the expert's investigation and research
is completed, and it is time to prepare the expert for trial. The final
trial preparation for the expert should revolve around the seven
touchstones discussed in Part I above.
An experienced trial lawyer has described trial work as preparation,
preparation, preparation, with a little time in court. Expert testimony
which is both helpful and persuasive for the fact-finder must be carefully
and painstakingly prepared and presented in a clear and cogent fashion.
That just does not happen by itself; it takes long hours of careful
preparation.
"Garbage in and garbage out." The first principle with regard to expert
testimony is that the quality of an expert's opinion is directly proportional
to the quality of her investigation and research. If the expert does quality
work, then she will produce a quality opinion.
The major focus with regard to the quality of an expert's opinion
should be the expert's thesis and methodology. Every opinion has a
thesis and a methodology as its base. An expert's testimony will be
persuasive if her thesis and methodology are valid and are also understood
and believed by the fact-finder.
The facts, figures, tests, or other data and the expert's analysis leading
up to the opinion are but appurtenances which develop the core thesis
and the methodology underlying the opinion. The advocate wants the
fact-finder to accept the result of the expert's work. To achieve that
goal, the advocate must persuade the fact-finder of the validity of the
thesis and the methodology on which expert bases her opinion. An
analysis of the expert's core thesis and the methodology employed is
also useful when cross-examining the opponent's expert. The zealous
advocate should "go for the jugular" by preparing the cross-examination
to attack the opposing expert's thesis and methodology. If other factors
in the expert's opinion need to be included in the cross-examination
of an expert witness, they can be more readily handled on cross-
1991] EXPaT TEsTImONY
The lawyer has the best expert for the case; the expert's technical
expertise and specialized knowledge is superb; the expert has conducted
a thorough and careful investigation; and the expert's opinion is first-rate.
The lawyer, however, is not yet ready for the direct examination of the
expert witness at trial. The lawyer must now carefully organize the
expert's testimony to ensure that the expert not only discloses the opinion
to the fact-finder, but also educates and persuades the fact-finder. Effective
and persuasive expert testimony does not just happen, even with a brilliant
lawyer and a brilliant expert. The expert's testimony must capture the
audience. The examination cannot accomplish this task by sailing over
the fact-finder's capabilities to absorb the technical data or specialized
knowledge. Good organization establishes the way for the fact-finder
to reach the desired result, rather than leaving it to the innate abilities
of the expert to explain her work and opinions. Without proper
organization, the fact-finder will become mired in technical data and
specialized knowledge.
The lawyer must organize the expert's testimony to educate the jury
by starting with basic concepts and building on them until the fact-finder
can readily understand the expert's opinion. Organization and explanation
are essential to educating the fact-finder and persuading the fact-finder
to adopt the expert's opinion.
Based on this author's experience, the test of a successful direct
examination is to view the expert's testimony from the perspective of
the fact-finder. The fact-finder has neither technical expertise nor
specialized knowledge like the expert. She has not lived with the case
or thoroughly understood it like the lawyer, but she must make a decision
19911 EXPERT TESTIMONY
based upon what he hears and sees in the courtroom. The expert and
the lawyer should not condescend to the fact-finder, rather, they should
begin with basics and build upon them. Even a modest level of technical
expertise or specialized knowledge should not be assumed. The lawyer
and the expert should concentrate on raising the fact-finder's level of
understanding through the education process. How information is
presented in terms of organization and structure significantly affects
the fact-finder's ability to comprehend and understand.
The following examples of the direct examination of an expert witness
demonstrate different organizational structures and persuasiveness from
the perspective of the fact-finder. In the first example, the lawyer qualifies
the witness as an expert in his particular area of expertise; the court
accepts the witness as an expert in that field; and then the lawyer tenders
the expert's written report" The organization in this instance is very
simple and straightforward-qualify the expert, offer the report and
then let the fact-finder sort it out. The quality of the result in this instance
will probably be directly proportional to the quality of the organization
and explanation.
In a second example, the lawyer qualifies the witness as an expert
in her particular area of expertise; the court accepts the witness as an
expert; the lawyer offers the expert's written report into evidence and
then asks the expert to explain his research and findings. This inevitably
results in a long, rambling, and disjointed discourse by the expert. The
testimony is not organized to educate and explain. The judge mentally
gives up, and either stops paying attention or forces the examination
to a halt. The judge is essentially in the same position as having just
received the report, with the exception that the judge's time has been
wasted. Maybe this is why simply offering the expert's report and getting
on with the trial has received some support.
In the third example, the lawyer qualifies the witness as an expert
in his particular field of expertise; the court receives the witness as an
expert; the expert explains what he did in the case in terms of his
investigation and research; the expert introduces basic concepts on the
core thesis involved in the expert's approach; the expert explains and
50. In the United States and some other common law jurisdictions, the reportis not accepted
as evidence; it is only the expert's oral testimony of her opinion that is evidence in the case.
AMERICAN JouRNAL OF TRIAL ADVOCACY (Vol. 15:215
clarifies the methodology used; and finally the expert explains his opinion.
The examination is organized to educate and persuade the fact-finder.
There are many examples of an organization that will effectively educate
and persuade. The key element is that the lawyer wants it to be organized,
takes the time to organize it and has the discipline to implement the
organization with the expert at trial. Critical to an effective organization
of the direct examination is the importance of concepts as opposed to
details. The advocate must stress concepts and minimize details.5 '
Assuming that the expert's and the lawyer's pre-trial preparation has
been thorough and careful, that the expert has the requisite technical
expertise or specialized knowledge, that the expert's opinion is valid,
and that the expert's testimony at trial has been carefully organized and
structured in a framework to persuade, the attorney must then concentrate
on the final mode of trial preparation: preparing the expert to educate
the fact-finder. The expert's primary role at trial is to educate the fact-
finder so that the expert's opinion with the advocate's help will persuade
the fact-finder to reach the desired result.
Thus, in preparing the expert for her trial testimony, the lawyer should
focus on educational concepts and view it from the perspective of the
student rather than the teacher. The goal is to assist and help the fact-
finder. Therefore, the focus should be on the needs of the fact-finder
rather than the needs of the expert.
Conclusion
When preparing the trial testimony with the expert witness, the advocate
must keep in mind the educational process, reflecting upon things which
he has learned from the educational process, particularly those
teaching/learning techniques that were helpful and those that were not.
Every lawyer has been through an educational process which included
51. A sample organizational structure for the direct examination of an expert witness is
presented in Part I of this paper entitled the "Seven Touchstones for the Direct Examination
of an Expert Witness."
19911 EXPERT TEsTIMONY .259
some great teachers, good teachers and poor teachers. In those courses
with bad teachers, some students learn, and some do not. The amount
of learning by the students depends upon each person's work ethic,
interest and intelligence. In the fact-finding process at trial some judges
work hard, some do not, and some cannot because of time pressure.
Some judges may be particularly interested in the case, and some may
not. Some judges are bright, some are not and most are somewhere in
the spectrum in between. The same analysis is true for jurors in a jury
trial and, although they might not be as bright as the judge, there are
more of them. The quality of teaching does affect the learning process,
and judges and juries are no different than students when it comes to
understanding and comprehending expert testimony. In presenting expert
testimony, the advocate has the duty to educate the fact-finder on his
expert's opinion and, thus, the advocate cannot responsibly leave the
educational process solely to chance. He must plan and carefully prepare
the testimony so that it does, in fact, educate and persuade the fact-finder.
AMIcAN JouRNAL oF TRiAL ADVOCACY [Vol. 15:215
Appendix I
Federal Rules of Evidence
Pertaining to Expert Testimony*
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to
the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
*The text of these rules is as amended through April 1, 1990. The Federal Rules
of Evidence govern all judicial proceedings for the United States Courts and Magistrates. The
Federal Rules of Evidence have now been adopted, in whole or in part, by almost all of the
states, and therefore these provisions will most likely govern local state court proceedings.
1991] EXPERT TlSTIMONY 261
a defense thereto. Such ultimate issues are matters for the trier of fact
alone.
Appendix II
Summary of Seven Touchstones
for Presenting Expert Testimony
A summary of the seven touchstones is set forth here so that all or
a portion of them may be integrated into a trial notebook.
(4) License-Certification;
(5) Publications;
(6) Teaching Experience; and
(7) Experience as an Expert Witnes&/Pior In-Court Testimony
(b) Tie the Expert's Qualifications into this Case
(c) Priority of Persuasiveness of the Qualifications
(d) Explanation of Expertise or Specialty
(e) Stipulating to the Expert Witness's Qualifications
Touchstone #3:
Tender Witness as an Expert in a Particular Field
"If the court please, I tender John Doe as an expert in (insert area
of expertise)."
Touchstone #4:
Assignment and Overview of Basis for Opinion
(a) Multiple Opinions. Separate out each opinion and elicit them
seriatim--opinion #1, opinion #2, etc.
(b) Two Questions for Each Opinion
(1) "Do you have an opinion as to (insert the issue at hand)?"
(2) "What is that opinion?"
(c) Reasonable Degree of Certainty: "Do you have an opinion
(pause) to a reasonable degree of certainty within your
profession (pause) as to (insert the opinion requested)?"
(d) Opinion on an Ultimate Issue. An expert is permitted to give
an opinion on an ultimate issue of fact.
Touchstone #6:
Explanation of Opinion-Teaching
If the expert has given onlyone opinion, then see 6(e) above for
the concluding rationale that will end the examination on a high note.
If, however, the expert has given more than one opinion, then the
entire direct examination should end on a high note with a review of
the expert's most significant contribution to the case and the most
persuasive rationale and basis for the expert's opinions.