This Brushstroke looks at how to tackle the challenge of those defense experts or defendants who are evasive and/or want to make a closing argument with every answer. In short, set them up in voir dire and opening.
To do this you have to have your witnesses prepped to behave — do everything in your power to keep them in line — brutal, no pussyfooting around prep is required of your witnesses, especially experts! Explain, if they argue and duck questions, you will lose. Tell them that one of your secret weapons is to compare their demeanor on the witness stand to the defense witnesses’ demeanor. Tell them they are the key to making this strategy work and you need them to help or it will backfire. Clients and experts love being part of a strategy to mess up the other side. It allows them to think they are outsmarting the questioner by giving straight answers.
In voir dire, talk about the instruction on believability of witnesses. Tell the jury you are to weigh things like: does the witness give straight answers or are they being evasive and ducking questions; does the witness want to argue for one side no matter what question is asked or do they simply answer questions and let the facts speak for themselves? With experts, do they seem to have an agenda or are the just provided information even-handedly. Both sides have experts who have been paid for their time.
That does not mean they are not telling the truth, but it is a consideration if they seem to be fighting for the side that hired them, rather than just answering questions posed to them. It’s like that famous quote from old England, “He uses his opinions like a drunk uses a lamppost, to support rather than illuminate.” Can each of you keep that in mind while you are assessing the believability of all witnesses, including expert witnesses hired by one side in a lawsuit? Can you compare the demeanor of witnesses: do one side’s witnesses answer questions directly, even if they help the other side, while the other side’s witnesses put up a fight anytime the answer may hurt their side? Can you keep an eye out for differences like that? Are they polished, master persuaders or are they honest educators? Thank you.
In opening bring it home: You remember me talking about the believability of witnesses and their demeanor? Now I can talk about what we expect the evidence to show in that regard. Maybe I will be pleasantly surprised, but I expect the evidence to show that Dr. Foley will argue the defense’s side with most questions asked. You will hear he has worked for these lawyers 20 times; he has made $200k from that law firm over there in the last three years; he has made over $20k in this case alone and has made a million dollars from representatives of the defense in the last 3 years alone. He will tell you the fact my client’s symptoms started at the time of the crash and have never gone away is all just a big coincidence. You will have to put all of that together, using your common sense, and compare his demeanor as a witness to other witnesses. I don’t mean charm, nice suits, good credentials and a good smile, I mean does he answer questions straight-up or does he answer like he has an agenda: Is he using his “opinions” to support, rather than illuminate, is he an honest educator or a master persuader? You’ll know he is coming when the judge says, “Call your next witness,” and defense counsel says, “The defense calls Dr. Foley.” That will be the guy I’m talking about and am asking you to keep an eye on in determining the believability of witnesses as the judge instructs you.