By Dr. Ken Broda-Bahm:
I recently finished sitting in on a three-week trial, and throughout the testimony, many of the experts were led through their direct. One expert in particular, the other side's expert thankfully, made it through her entire direct examination without saying anything other than her name, "Yes," and "That's correct." Even on the simple questions, the examining attorney would say, "And you graduated from LSU? Majored in economics? Worked for seven years as a private consultant? Testified for both plaintiffs and defendants, right?" And of course, when it came to her main conclusions, each was presented in a way that enjoyed the attorney's wording, emphasis, and explanation, not the expert's. This witness should have played a pretty important role in the trial, answering the question to the extent in which the injured plaintiffs would be able to work again. But every single item of substance came from the attorney, not from the expert earning thousands of dollars for being there in court. The message to the jury was, the expert isn't really the expert, and it is all really coming from the attorney.
Leading an expert through parts of the direct examination is something that is done for efficiency and control - I get that. But attorneys can frequently put the goals of efficiency and control ahead of the goals of credibility, good communication, and persuasion. I believe that in most cases, leading your own expert is a really bad idea. In this post, I will discuss some of the reasons why, and I will share recommendations on good open-ended questions for your experts.