Effective Expert Witnessing : Practices for the 21st Century book cover
5th Edition

Effective Expert Witnessing
Practices for the 21st Century

ISBN 9781439887677
Published August 30, 2012 by Routledge
204 Pages

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Book Description

The testimony of an expert witness can lead to success or failure in cases that hinge on the presentation’s impact on a jury. Effective Expert Witnessing, Fifth Edition: Practices for the 21st Century explores the fundamentals of litigation, trial preparation, courtroom presentation, and the business of expert witnessing. Extensively updated to reflect new developments since the last edition, it provides practical advice enabling expert witnesses and attorneys to maximize the effectiveness of their expert testimony.

The Fifth Edition includes three new chapters. The first uses a hypothetical case study to explore expert witness immunity and issues related to professional malpractice and civil liability. In a chapter on psychology and the art of expert persuasion, noted social psychologist and witness preparation specialist Ann T. Greeley reveals the psychology of juries, discusses what makes an expert effective, and provides tips for conveying effective testimony through verbal and nonverbal behavior and graphics and technology. The final chapter surveys nine of the worst mistakes an expert can make and provides tips on how to avoid them.

Accompanying the book is an invaluable CD-ROM in which Dr. Matson introduces video clips demonstrating effective and ineffective expert testimony at deposition and trial. The book and supplemental CD-ROM provide robust strategies ensuring that expert witnesses have the best possible advantage in presenting testimony that is credible, persuasive, and compelling.

Table of Contents

The Legal Environment

Lawyers and Litigation
The Role of the Expert Witness
What Is an Expert Witness?
How Experts Can Be Utilized in Litigation
Two Types of Experts: Consulting and Testifying
The Relationship between Lawyers and Experts
The Expert Report
A Closer Look at the Impact of Daubert
Conformity versus Flexibility
Standards for Reliability and Relevance
The Role of the Judge under Daubert
Daubert Applied
The Impact of Daubert on Expert Witnessing
A Word on Junk Science
An Additional Impact of Daubert—The Amended Rules of Evidence
Key Cases and Precedents Affecting Expert Witnessing
Frye v. United States (1923)
Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
General Electric v. Joiner (1997)
Carmichael v. Kumho Tire Company (1998)
The Hearsay Rule and Its Relevance to Experts
In Summary
The Pretrial Process

Affirmative Defenses
Automatic Disclosure
Production of Documents
Organization of Documents
Chain of Custody
The Expert Report
Preparing the Expert Report
Preparing for a Deposition
The Process of Deposing Expert Witnesses
Preparing for Trial
Developing the Trial Theme
Preparing the Lawyers
Changing Your Opinion
Trial Exhibits
Understanding the Judge
Types of Juries
Jury Selection
The Courtroom Drama
The Jury—the True "Audience" of the Trial
Opening Statements
Direct Examination
The Role of the Attorney
Building the Case
Preparing for Cross-Examination
Opposing Counsel’s Strategies
Hypothetical Questions
Other Important Aspects of Cross-Examination
Jury Instructions and Closing Arguments
Post-trial Motions and Appeals
The Art of Expert Witnessing

Developing the Professional Relationship
Maximizing Your Effectiveness
Be Prepared
Be Professional
Be Organized
Tell the Story
Show Emotion
Create Vivid Visualizations
The Ethics of Expert Witnessing
The Future of Expert Witnessing
Revisiting the Use of "Neutral" Experts
The Impact of Technology and Social Media
Alternative Dispute Resolution
Tort Reform
The Business of Expert Witnessing
Forming an Expert Witnessing Business
Contractual Considerations for Expert Witnesses
Basic Types of Contractual Arrangements
Retainer Contracts
Time and Materials Contracts
Flat Fee Contracts
Organizational Directories
Professional Societies
Expert Witness Service Companies
Letters to Attorneys
Direct Mail
Expert Referral Agencies
Education-Based Marketing Strategies
Expert Immunity, Professional Malpractice, and Civil Liability
Hypothetical Situation
Expert Mary Watson Retained
Mary Watson’s Investigation and Expert Opinions
Deposition of Mary Watson
Deposition Debriefing of Mary Watson
Legal Action
Breach-of-Contract Action
Possible Judicial Outcomes
The Judge’s Decision
Psychology and the Art of Expert Persuasion;
Ann T. Greeley, PhD
How Are Today’s Jurors Different?
Psychology of Juries
Jury Decision Making
Cognitive Dissonance and Heuristics
Thin Slicing and Cognitive Embodiment
Learning Style, Persuasion, and Expectations
What Makes an Expert Effective?
Testifying in Depositions or at Trial
Recommendations for Nonverbal Behavior
Effective Verbal Communication
How Graphics and Technology Help
Graphics Can Affect Cognitions
Specific Ways That Graphics and Technology Change the Trial Canvas
Are Judges Biased?
In Conclusion
Nine of the Worst Mistakes That Experts Make and How to Avoid Them
Establishing Credibility
Number 1: Mr. Blinkoff versus Mr. Blinkon
Number 2: Mr. Unlikeable versus Mr. Likeable
Number 3: Dr. Bellicose versus Dr. Zen
Confidence 1
Number 4: Mr. Wimpy versus Mr. Warrior
Number 5: Ms. Freako versus Ms. Cool
Number 6: Dr. Bias versus Dr. Fair
Number 7: Dr. Fudger versus Dr. Precise
Number 8: Ms. Make Up versus Ms. Exact
Number 9: Robot versus Human
Appendix: Expert Witness Resources

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Jack V. Matson, Ph.D., is emeritus professor of environmental engineering at The Pennsylvania State University and an owner of Matson and Associates Inc., a litigation support consulting engineering firm, in State College, Pennsylvania. His expertise is in the field of chemical emissions, water and wastewater treatment, air pollution, and hazardous wastes. In the course of his career, he has been deposed in over 100 cases and testified at 20 trials. He continues to be active as an expert witness in environmental litigation, specializing in chemical emissions. He is a registered professional engineer in Pennsylvania, Texas, and Ohio.


Praise for the Previous Edition:

"Effective Expert Witnessing is a well-conceived and well-written book that organizes the often seemingly chaotic proceedings of litigation into a logical, structured, step-by-step process, one that individuals outside the legal community can readily understand. The numerous suggestions and analyses presented by the authors serve to bridge the gap between scientific expert witnesses and the legal community. The case studies highlight the impact and importance of the interrelationships of the fields of science, health care, and the law. This book is recommended for individuals possessing scientific knowledge and expertise who contemplate undertaking the role of a consulting or testifying expert witness. In addition, physicians who are summoned to testify in a court of law, and attorneys involved in various kinds of medical-legal litigation will find this book an especially useful reference."
Journal of Legal Medicine

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