How to Be an Effective Trial Witness

I’ve decided that despite only serving as a juror for 7 days, I am sufficiently qualified to advise people on how to be a successful witness in a trial. My particular case was a local medical malpractice lawsuit with a combination of paid and unpaid witnesses, but I’m confident that my tips would translate to criminal cases, as well.

It turns out that the expression, “You get what you pay for,” even applies to experts who testify in a trial. There were three doctors hired to review our case: one for the defense, and two for the plaintiff. For some reason it was always the opposing attorney who would ask a question considered quite rude outside the courtroom, “So, how much did you get paid for this gig?”

Ok, well maybe they didn’t ask it quite like that, but the legal teams were indeed curious about compensation and time invested. I was shocked when I heard the first pay-inquiry, directed at a doctor in California who testified via video. He didn’t seem fazed by the question, and calmly announced his rate of $350 per hour. You could see the jury members doing math in their head when the next answer came out: he’d spent over 30 hours on the case. It was beginning to look like the expert witness deal was a profitable venture, if you don’t mind being harangued by lawyers.

In the case of this doctor- let’s call him “Dr. California”- was it worth the money? I would have to give him a grade of “C” on his performance: he gave a decent presentation for the plaintiff but did concede on the defense’s main argument during cross-examination. His presentation was flat, the video was long and tedious, and something didn’t quite translate in the same way it might have if he had made the trip to Augusta. The plaintiffs were spending the money anyway, why not sport out some cash for travel costs? In this particular instance, I’m not sure that the video testimony was a solid investment.

Our next medical expert, however, was worth every penny, despite the $500 per hour fee. This man was amazing. Even if you hadn’t peeked at his impressive CV, you immediately got a sense of his confident authority and intimidating intelligence. He knew the details of the case off the top of his head, and when the opposing attorney tried to shake his testimony, he chewed her up and spit out the scraps. He simply could not be overcome in his articulate assessment and Mensa-level replies. Despite his obvious intellect, he explained procedures such as “nasotracheal suction” to the jury in a way that made us nod our heads in comprehension. He had flown in from Pennsylvania in order to testify live, and the resulting presentation was one of the most memorable moments in the trial. I’ll call him “Dr. Mensa”.

Unfortunately the third paid witness was as underwhelming as Dr. Mensa was overwhelming. This last doctor was local but couldn’t come in to testify until the last day, forcing the judge to allow witnesses to testify out of order. A retired anesthesiologist, he had signed 4 different affidavits criticizing whichever party the plaintiff decided to sue that week. His testimony, at $100 an hour, lacked authority, veracity and vocal variety.  I hate to always drag out the automotive analogies, but I felt like I had moved from a test-drive of a Lexus LS460 to a pre-owned Ford Fiesta.  By the time “Dr. Fiesta” spoke to us on the last day, the jury was so well-versed in the details of the case that we audibly gasped when he answered a question incorrectly.

“How many times did the patient receive a mucomist treatment?” The defense  attorney quizzed him during cross-examination. The rest of us had all committed the charts to memory and knew that there had not been any mucomist given, despite doctor’s orders. Dr. Fiesta wasn’t as well-versed. “Once or twice,” he replied, at which point we knew the testimony was heading down the toilet. “Ok”, the attorney replied, “why don’t you find it for me in the MAR”, he suggested, referring to the medical document reflecting all meds given. “What’s an MAR?” Dr. Fiesta looked puzzled. The mortification continued for another 30 minutes, until the attorney decided that he had buried himself deep enough already.

What Dr. Mensa and Dr. Fiesta did have in common was an understanding of the importance of speaking directly to the jury. After several days of witnesses (nurse, family members) who only spoke to and looked at the lawyer, it was refreshing when the first witness (Dr. Mensa) positioned himself toward us, made eye contact, and spoke to us about the medical procedures as if we were his colleagues. It was respectful and engaging. I understand that the witness stand can be intimidating, but it makes such a difference to have someone look at you when they speak. The only non-paid witness to do so was the defendant himself, who pulled us in with his directness and self-assuredness.

After observing this wide range of witnesses, I have made myself a note of the top 5 things to remember when speaking from the stand: 1-Make eye contact with the lawyer AND the jury. 2-Be sincere and confident in your replies. 3-Answer only the question. Do not expound on the topic if not asked to do. 4. Good posture and open body language helps. 5. Above all, NEVER EVER guess if you are unsure of an answer. If you don’t know, admit it. If you don’t remember, say so. If you need to, qualify an answer with “as best as I can recall”. There is nothing more awkward than a witness being challenged on an answer that they clearly pulled out of their hat.

I cannot imagine that being a witness is a good experience. If you are in court, often something bad has happened to someone. The only way to survive the testimony process with grace is to stay true to yourself, look the jurors in the eye, and hold yourself with confidence. Oh, and don’t be afraid to ask for what you are worth.

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