March 24, 2011

Expert Witnesses: When Criticized, Don’t Just Respond, Riposte!

In fencing, a “riposte” is the act of turning away an attack (a parry) and converting it into a strike back at your opponent. In common conversation, a riposte means answering an attack or an insult with a witty reply. In either case, it is a good come back that converts defense to offense, and that is what expert witnesses need to be looking for when their credentials, methods, or conclusions are being criticized as part of litigation. It may sound obvious to “have a good response,” but recent research shows that the quality and style of answers can play a critical role in supporting the expert’s credibility. Our own experience tells us that experts who are prepared with a specific sequence or model for response, do much better.

By:  Dr. Ken Broda-Bahm –

Fencing cropped 
Ken_044In fencing, a "riposte" is the act of turning away an attack (a parry) and converting it into a strike back at your opponent.  In common conversation, a riposte means answering an attack or an insult with a witty reply.  In either case, it is a good come back that converts defense to offense, and that is what expert witnesses need to be looking for when their credentials, methods, or conclusions are being criticized as part of litigation.  It may sound obvious to "have a good response," but recent research shows that the quality and style of answers can play a critical role in supporting the expert's credibility.  Our own experience tells us that experts who are prepared with a specific sequence or model for response, do much better.   

One thing we do know is that jurors are paying attention.  One recent review, Foster (2010) looked at the roles that experts play in combating the less rational tendency of jurors to "anchor" their opinions, and found that the bulk of research on the question suggests that jurors don't simply accept expert testimony at face value, but instead look closely at the clarity and credibility of that testimony. Another very important study (Kutnjak-Ivkovich & Hans, 2003), for example, drew from the experiences of 269 jurors who had completed their service on civil trials involving expert testimony.  Based on hour-long interviews with each of these former jurors, the authors concluded that jurors tend to look at the clarity and the completeness of expert testimony in deciding whether to believe it or not.  One recurring factor is how well the witness holds up in cross-examination.  In describing his reactions to a particular expert who stood up well to cross-examination, one juror said:

"Most people would tend to back down if they're attacked, but he didn't.  He knew his stuff and he knew the rules.  I just liked that.  I thought, he's not lying, and he's not hemming and hawing.  He knows his stuff." 

Another juror mentioned – incidentally on the same witness,

"this man was able to tell the lawyers, 'no offense, mind you, this is my line, so I'll tell you.'" 

One of the best expert witnesses I've ever seen is a relatively young damages expert.  What sets him apart is two things:  one, he does his homework to the point that he is miles ahead of opposing counsel; and two, he has a friendly way of not giving an inch.  Obviously, two depends on one, but when it works, cross becomes the highlight of testimony.  Jurors may not understand all of the financial nuances, but they understand that opposing counsel is getting nothing in cross, and they will smile and nod when they see our expert giving one effective response after another.  It is only after cross that they fully appreciate the strength of his testimony.

So how do you get there as an expert, to the point where cross becomes the time to shine?  There are a variety of tools, but let me suggest one effective sequence for making sure that you are giving riposte and not just responding. The method applies to any situation where you, as an expert, are responding to criticism:  a rebuttal report, deposition, cross-examination, or rebuttal examination.  While opposing counsel might try to restrict you to "yes" and "No" responses, you will have at least a few opportunities for a complete answer at some point or other.  Using the example of a medical expert, the response would move quickly through four phases:

One - Identification (or I can see how you would think that…)

This step builds credibility.  By seeing the critique as "an understandable mistake" rather than "just plain wrong" you have a better chance of converting those who may, at least initially, be swayed by the criticism.  

Looking at the charts now, knowing what we know now, I can see how it might seem obvious that the patient should have gotten a CT scan…

Two - Reframe (...but it isn't like that)

Refuting a point can be thought of as moving your listeners from one frame to a better frame.  Often it is the case that your adversary isn't making a factual error, but just isn't thinking about it in the right terms.  Your reframing should lay out those terms.  

…but the better way to look at it is to consider the information that Doctor Stevens had at the time: the patient's own reports and vital signs.

Three – Support (…and the reason we know that is true is…)

Jurors know that you are paid, and at least some of them believe that it is not just for your time.  They listen for the proof, and the proof should be like a neutral third-party. 

…and what she reported was trouble breathing.  And what her vital signs indicated is a mildly elevated heart rate.  Nothing at all that would suggest the need for a CT scan.

Four - Return (to your main point…and so that brings us back to the correct answer…)

The measure of the response is how you end it.  Never end in the position of being back on your heels, trying to explain away a problem.  Instead, try to always end an answer by bridging back to one of the main conclusions that you want jurors to take away.

…and what that means is that Doctor Stevens violated no standard of care, but instead made the only medically appropriate decision.

It isn't hard to remember, and it sounds natural and powerful when you put the four steps together.  A response can just leave you on the defensive, but a riposte can bring you back to your ground and leave jurors with a better understanding and a more favorable impression.

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Related Posts:

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ResearchBlogging.org Foster, E.L. (2010). Anchoring and the Expert Witness Testimony Do Countervailing Forces Offset Anchoring Effects of Expert Witness Testimony Tennessee Law Review, 77

  Kutnjak Ivkovich, S., & Hans, V.P. (2003). Jurors' evaluations of expert testimony: Judging the messenger and the message. Law and Social Inquiry, 28, 441-482

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