5th Edition

Effective Expert Witnessing Practices for the 21st Century

By Jack V. Matson Copyright 2013

    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.

    The book and supplemental downloadable resources provide robust strategies ensuring that expert witnesses have the best possible advantage in presenting testimony that is credible, persuasive, and compelling.

    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


    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