When addressing an expert witness in the courtroom, there are multiple occasions where questions from opposing counsel are not designed to gather information, but simply to a place the witness “off balance.” Presentation of information, facts, or data from a person that seems unsure can dissolve any trust a Judge or jury might have in the person giving testimony. Once trust is destroyed, any testimony from that time forward can be a waste of time and money.
The agitating question is designed to fluster the witness so they focus more on fighting back than presenting a proper response. Author Stanley Brodsky points out that the more the witness fights back the greater he is viewed as “unsteady”. Responses to questions should be proportionate. According to Dr. Philip Witt, a Forensic Psychologist, if the question is a mouse, then it should be treated as such and not like it was an elephant. Sometimes a simple “Yes or No” is the best response in diffusing an agitating question.
Another strategy that supports expert witness testimony is to have a strong presentation. This not only includes facts and data but documentation to support the method used to reach an opinion. Assessment tools and instruments should have a strong record of use and of withstanding previous legal challenges. The supporting documentation for the assessments and instruments should be included in the original opinion. This will help to minimize the appearance of having to justify the methodology as an afterthought.
There will always be questions. Rarely is any opinion 100% accurate for either side. Building a tight opinion on the initial presentation, leaves fewer gaps to pry. With no real purpose or direction, the opposing attorney will appear to be on a fishing expedition rather than having purpose in their questions. This in itself will add support to the expert’s witness’s opinion.