The Third Leg of Expert Witness Preparation
Good communication skills are essential for the expert Witness
Expert witnesses and litigation support professionals generally do not consider the importance of communication skill training and practice as part of their preparation process. Communication is the third leg of expert witness preparation and separates the average witness from the great witness.
Most literature, articles, and training related to the role and preparation of an expert witness focus on two areas. First, there is process or subject matter knowledge. This is important. For the sake of this discussion, assume the expert is qualified by education, training, and experience. The second area of consideration is procedure and is the popular focal point of both expert and legal counsel discussions.
From the expertâ€™s viewpoint and professional training, procedural preparation encompasses knowledge of all areas pertaining to court and judicial procedure; review of documents, files, and reports; scheduling appropriate meetings with counsel prior to deposition or trial and perhaps, attending one or more litigation support training courses. The perspective of legal counsel is more fact, case, and procedure specific. Legal counsel provides general testimony suggestions; review and critique pre-trial or pre-deposition opinions, documents, and expert testimony, and provide insight to direct examination questions and expected areas of contestation.
Less is written on what follows next. The unfortunate fact of expert witness preparation is that litigation support professionalsâ€”in my experienceâ€”quite often fail to consider and invest in the third leg of preparation which directly impacts judge and jury. This third leg of preparation and training separates the average expert from the great expert witness and is called communication. This is a skill that requires training and continual practice. Expert witnesses must understand that their role is more than being subject matter experts (SME) and offering an opinion or defending a position. They are, in effect, educating the jury or trier of fact and selling both their opinion and themselves. Not unlike an athlete, the expert witness requires practice to communicate effectively, convincingly, and under pressure. Consider the speaking and communication skills of top expert witnesses and some common characteristics they share.
- Listens carefully to questions and takes time to form a complete and proper response: Novice speakers and experts react too quickly and rush to fill dead air space
- Displays proper body language to the audience (judge, jury, and attorney): A smile, receptive posture, and proper gestures go a long way toward confidence, acceptance, and credibility
- Able to make complex concepts and issues simple: Good experts realize that they must educate and lead the audience (trier of fact) without losing their interest or alienating them by inadvertently talking down to them
- Effectively respond to unexpected questions and distractions: This is the real test for any expert or speaker, because relevant questions should be expected from intelligent parties in a litigation matter
- Able to speak with minimal filler words and verbal mistakes: Public speakers and good expert witnesses understand that excessive ands, ahs, and uhs are like a dentistâ€™s drill to the audience and affects credibility, listening, and even likeability. The same is true of other speech mistakes
- Speaks at an appropriate rate with vocal variety: Speakers and good expert witnesses alike understand the time it takes to process information and the necessity of allowing the audience time to absorb the information and responses given
- Comfortable with visual aids and technology: Good experts realize that given the proper circumstance, the audience will respond more favorably to a visual image than verbal description or an explanation. Preparation and practice make perfect
The question that remains is where do good expert witnesses get their communication training and practice? The answer is fairly simple. Those that commit to becoming a good or great expert witness can find structured training courses offered by various organizations in almost every major city. Similarly, Toastmasters International has local chapters in almost every city and provides an excellent training foundation and practice forum. Many of us within NACVA have used it as such. On an ongoing basis, practice (conditioning) opportunities are available through public speaking at local bar association meetings, financial planning events, NACVA, and ASA local chapter meetings, or perhaps as an adjunct faculty member at a local college or university.
In short, the expert witness that is committed to providing clients and the legal community excellent service will volunteer to speak; that is, they will seek opportunities to improve and practice verbal and non-verbal communication skills as the third leg of expert witness preparation.
Jeffrey Harwell, CVA, MAFF, CMEA, is principal of Harwell & Company, a Dallas/Fort Worth, Texas business valuation, litigation support, and machinery and equipment professional advisory firm. As a valuation analyst, his time is exclusively devoted to providing answers and solutions to client problems in the complex area of valuation. The firmâ€™s focus includes economic damage and litigation support. Mr. Harwell serves on the Education Quality Assurance Board of the National Association of Certified Valuators and Analysts (NACVA) as well as its Standards and State Chapter Committee. Mr. Harwell serves as NACVAâ€™s State Chapter President of Texas. Mr. Harwell can be reached at (817) 385-1866.