1. law, govt and politics

How to Be a Successful Expert
CONCURRENT SESSION
Financial Advisors Track
Judy D. Thompson, Moderator
JD Thompson Law; Charlotte, N.C.
Hon. Janet S. Baer
U.S. Bankruptcy Court (N.D. Ill.); Chicago
Christian Carl Onsager
Onsager, Staelin & Guyerson, LLC; Denver
Jeffrey R. Truitt
2013
XRoads Solutions Group; Santa Ana, Calif.
Access circuit court opinion summaries
From the Courts to You
within 24 Hours!
With Volo:
• Receive case summaries and view full decisions
• Automatically have opinions in your circuit delivered
• Search by circuit, case name or topic
• Access it free as an ABI member
Be the First to Know with Volo
volo.abi.org
44 Canal Center Plaza • Suite 400 • Alexandria, VA 22314-1546 • phone: 703.739.0800 • abi.org
Join our networks to expand yours:
© 2013 American Bankruptcy Institute All Rights Reserved.
American Bankruptcy Institute
Practice Pointers and Best Practices for Financial Advisors Providing
Expert Testimony Services
Jeffrey R. Truitt
XRoads Solutions Group, LLC
As a restructuring and turnaround professional with 23 years of experience serving
clients in distressed situations, I’ve been called to provide expert testimony on
multiple occasions concerning a variety of financial and restructuring-related issues.
The preponderance of my testimony experience has been in matters before U.S.
Bankruptcy Courts. Over the course of my career, I’ve spent many hours in
bankruptcy courts. Although the capacity in which I served during these courtroom
appearances has varied (serving as financial advisor to either a debtor, a significant
creditor constituency, or a potential acquirer or as a chapter 11 examiner), I’ve always
found myself to be a student of the process. As I think back on my experiences in
court (as a non-lawyer), there were very few occasions when I didn’t learn something
new (albeit, sometimes the hard way). On many occasions the lessons learned were
the direct result of having provided expert testimony, but frequently the lessons
learned were the result of observing judges, attorneys and other financial advisors /
experts in action. So it is from this perspective that I offer the following nonexhaustive summary of practice pointers and best practices for use when providing
expert testimony services.
1. Engagement Letters
When evaluating an opportunity to provide expert testimony services, the
financial advisor should: i) have clear understanding of the matters he/she is
being asked to opine on; ii) consider whether he/she possess the appropriate
experience, skills and/or credentials to opine on such matters; iii) obtain a
general understanding of the specific facts and circumstances relevant to the
instant case; iv) identify all of the parties directly and indirectly involved
(adverse and non-adverse); and v) assuming he/she is inclined to provide the
requested services, carefully consider the appropriate terms and conditions of
the engagement. Once these steps have been taken and the financial advisor
elects to accept the assignment, he or she should issue an engagement letter
which, among other things, memorializes:
433
Annual Spring Meeting 2013
a. The identity of the expert’s client;
i. Is the expert being retained by counsel or counsel’s client?
ii. Who is the responsible party with respect to payment for the
expert’s services?
b. The subject matter of the assignment, scope of work to be performed, the
scope of testimony to be given and any other services that will be
required;
i. The scope of work and testimony should be clearly defined and
not overly broad.
ii. Deliverables that will be required by counsel (e.g. an expert or
rebuttal report) should be clearly identified (if known).
iii. Any other assistance that may be required by counsel (e.g.
preparation for cross-examination of experts etc.) should be
referenced.
c. That a conflicts check has been performed and that no relationships were
identified that would impair the expert’s ability to testify in an impartial
manner;
d. The fee structure;
i. Will fees for the services be billed on an hourly basis (with no
cap), an hourly basis (subject to cap), fixed basis or some other
basis?
1. Contingent or “success” fees generally should be avoided so
as not to give the appearance that the expert has a vested
financial interest in the outcome.
2. If expert’s fee is subject to a cap or is fixed, the cap or fixed
amount should be compatible with the scope of work/
testimony and deliverables identified.
ii. The timing of the payment of the expert’s fees should also be
expressly addressed. All outstanding fees and expenses owing
should be paid (in full) prior to the expert’s testimony (whether in
deposition or in court).
434
American Bankruptcy Institute
2. Research and Analysis Phase
The research and analysis phase serves as the foundation for the formulation of
an expert opinion. As such, it is important to employ “good” practices when
conducting this phase in order to build and enhance credibility. Examples of
such good practices include:
a. Identifying the universe of potential relevant data/information that is
available in the public domain. Potential reliable sources may include:
i. Governmental agencies that regulate and/or provide oversight of
the industry in which the debtor competes;
ii. Wall Street investment firms (research analyst reports);
iii. Industry trade groups;
iv. Business and industry press (e.g. Wall St Journal, Bloomberg,
trade publications etc.);
v. Third-party services that compile and summarize financial data
(e.g. Capital IQ, Ibbotson etc.);
b. Compiling and evaluating relevant data/information/analyses prepared/
compiled by the debtor/client;
c. Verifying and testing the reliability of the data /information /analyses
compiled from various sources;
i. When possible, cross-check data/information obtained from
multiple sources to ensure is consistency.
ii. If comparing, combining and/or relying upon data/information
obtained from multiple sources, confirm that such data/
information are truly comparable.
iii. Understand and acknowledge weaknesses in, and limitations of,
the data/ information relied upon and be prepared to defend how
such weaknesses were addressed.
iv. When using data/information/analyses prepared by a debtor/ client
(particularly forward-looking material e.g. financial projections),
such material should be thoroughly vetted and reasonable
independent judgment should be exercised when determining if
such material (with or without material adjustment or
modification) should be relied upon.
d. Employing generally accepted methodologies and applying them in the
appropriate manner when performing analyses that serve as the basis for
conclusions and opinions;
435
Annual Spring Meeting 2013
e.
f.
g.
h.
i.
j.
436
i. The assumptions adopted into such analyses must be reasonable
and defensible in light of the facts and circumstances known at the
time.
ii. The expert must be prepared to explain and defend any deviation
from generally accepted methodologies.
Applying reasonable judgment when formulating conclusions and
opinions;
Keeping a record of all data/information sources reviewed, considered
and/or relied upon in connection with formulating the expert opinion, as
such information is to be disclosed by the expert (usually as an exhibit to
a written report);
Avoiding excessive delegation or “leveraging” of work onto colleagues/
subordinates;
i. The expert should be engaged and “hands on” in all phases of the
assignment, especially the research and analysis phase.
ii. When and where possible, the expert should make site visits and
meet with management of the debtor.
1. “Desk-top” analyses can lack perspective and are usually
less compelling and persuasive.
iii. If the testifying expert is not an industry/company/collateral
expert coming into the assignment, he/she needs to become
knowledgeable in such areas prior to issuing a report and offering
testimony.
Being prepared to defend why certain data/information/analyses
identified were ignored, rejected or otherwise not relied upon;
Remaining focused on the scope of the assignment set forth in the
engagement letter in order to avoid “mission creep;”
i. Any work performed and testimony offered should be consistent
with the scope outlined in the engagement letter.
When and where appropriate, consider offering expert opinions using
ranges with reasonable upper and lower limits. For example, an expert
opinion concerning valuation may be offered in the form of a “range of
value” instead of, or in conjunction with, a point-estimate of value.
i. An appropriate use of ranges provides the expert with the
flexibility to:
American Bankruptcy Institute
1. Acknowledge that a certain level of subjectivity may be
inherent in their expert opinion;
2. Accommodate a reasonable margin of error in his/her
opinion;
a. The acceptable margin of error often varies
depending on the specific facts and circumstances of
the instant case and the subject matter involved (e.g.
enterprise value, liquidation value, cash collateral,
DIP financing, plan feasibility etc.).
3. How Should Communications before Testimony be Handled?
All materials related to the work product of a testifying expert and the opinions
he/she formulates are generally discoverable. Included among such
discoverable materials are communications between the testifying expert and i)
colleagues and subordinates, ii) counsel; iii) counsel’s client (i.e. the party that
is ultimately funding the payment of the expert’s services); and iv) other
experts (e.g. consulting experts retained by counsel).
a. How should communications between the testifying expert and
colleagues / subordinates be conducted?
i. Establish protocols for “internal” communications at the outset of
the engagement. Such protocols should be adhered to by all
members of the expert’s engagement team. Depending on the size
of the project and the engagement team, the protocols may
include:
1. Minimizing e-mail traffic amongst members of the
engagement team;
a. In situations where communication via e-mail (or any
other forms of written media) is necessary, drafting
any such correspondence with sensitivity for the fact
that such communications will ultimately have to be
produced to the adverse party(ies) as part of the
formal discovery process. Practices to avoid in
written communication include the use of:
i. Unnecessary commentary;
ii. Conjecture and/or hypotheses;
437
Annual Spring Meeting 2013
iii. Sloppy draftsmanship that could be subject to
misinterpretation;
iv. Language and tone that are unprofessional.
2. Communicating through verbally means (via telephone or
in-person) whenever possible;
3. Channeling the engagement team’s communications with
third-parties (e.g. counsel or counsel’s client) through the
testifying expert and/or a limited number of designated
seasoned professionals who are part of the expert’s team.
b. How should communications between the testifying expert and counsel
be conducted?
i. Minimize the use of e-mail and other forms of written
communication, especially concerning substantive issues.
ii. Communicate verbally (via telephone or in-person) whenever
possible unless counsel advises otherwise.
iii. Avoid seeking guidance from counsel with respect to the
formulation of conclusions / opinions.
c. How should communications between the testifying expert and counsel’s
client be conducted?
i. Communicate verbally (via telephone or in-person) whenever
possible.
ii. Avoid any communications (especially written) that could give the
appearance that expert’s conclusions / opinions are being unduly
swayed by the client’s view of the matters at issue.
d. How should communications between the testifying expert and
consulting expert(s) retained by counsel be conducted?
i. Avoid direct communication with consulting experts to the extent
practicable unless otherwise advised by counsel.
ii. Use counsel as a filter / conduit.
1. Counsel should decide what, if any, information/
communications/work product (generated by the testifying
expert) is appropriate to share with the consulting expert(s)
and vice-versa.
2. Adherence to this protocol will help preserve any applicable
privilege that may exist.
438
American Bankruptcy Institute
Daubert and Kumho Tire: a Short Primer
Christian C. Onsager
Onsager, Staelin & Guyerson, LLC
Denver, Colorado
439
Annual Spring Meeting 2013
Since 1923, the admission expert testimony was governed by the test adopted in Frye v.
United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In Frye, the court stated that expert opinion
based on a scientific technique is inadmissible unless the technique is “generally accepted” as
reliable in the relevant scientific community. Absent proof of the widespread adoption of the
principle in question, the evidence would be excluded. The imprecision of the test gave rise to
significant debate and much uncertainty.
With the 1975 enactment of the Federal Rules of Evidence, admission of expert
testimony became generally governed by Rule 702 of the Federal Rules of Evidence. Rule 702
provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.
Thus, FRE 702 codified the rejection of Frye’s singular focus on acceptance in favor of a more
comprehensive approach. But courts and legal scholars continued to debate whether Rule 702
eliminated or incorporated the “generally accepted” standard until Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137 (1999).
After Daubert and Kumho, the “generally accepted” standard was relegated to being only
one of many factors the court was required to consider when weighing whether the proffered
testimony was sufficiently reliable to be admitted. Since Daubert dealt solely with scientific
theory, the question remained whether the factors enumerated in Daubert would also apply to
440
American Bankruptcy Institute
cases where an expert relies on “skill- or experience-based observation.” Kumho answered the
question in the affirmative: the Daubert standard applied to all expert witness testimony.
The factors enumerated in Daubert for consideration by the trial court include: (1)
whether the theory or technique has been or is capable of being empirically tested; (2) whether
the theory or technique has been subjected to peer review and publication; (3) consideration of
the known or potential rate of error; and (4) whether the theory has been generally accepted in
the relevant scientific community. These factors are not particularly helpful outside of the realm
of scientific evidence. One court put it this way: Some courts have found it difficult to apply the technical factors in Daubert to
experts testifying on financial matters. See, e.g., First Tennessee Bank National
Association v. Barreto, 268 F.3d 319, 335 (6th Cir. 2001) (finding Daubert
unhelpful to determine whether expert used reliable methodology to determine
bank not acting consistent with prudent banking standards); In re Commercial
Financial Services, Inc., 350 B.R. 520 (Bankr. N.D. Okla. 2005) (addressing
challenge to expert valuation testimony); In re Joy Recovery Tech. Corp., 286
B.R. 54, 70 (Bankr. N.D. Ill. 2002) (addressing solvency analysis in LBO
situation and finding “[a]ccounting is not an exact science. Accountants are
therefore required to make judgments about how to communicate financial
information. A Daubert hearing is not the time to fully test the validity of those
assumptions.”).
Kipperman v. Onex Corp., 411 B.R. 805, 843 (N.D. Ga. 2009). The advisory committee notes
for FRE 702 offer some guidance that is relevant to non-scientific evidence, suggesting that
courts consider factors such as:
(1) Whether the [expert is] proposing to testify about matters growing naturally
and directly out of research [the expert has] conducted independent of the
litigation, or whether [the expert has] developed [the] opinion expressly for
purposes of testifying;
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to
an unfounded conclusion;
(3) Whether the expert has adequately accounted for obvious alternative
explanations;
441
Annual Spring Meeting 2013
(4) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting;
(5) Whether the field of expertise claimed by the expert is known to reach reliable
results for the type of opinion the expert would give.
Fed.R.Evid. 702, advisory committee note (2000 amends.) (citations and internal quotations
omitted).
It’s the Process The inquiry under Daubert focuses on the methodology of the expert, not the conclusion.
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000). If that methodology comports with
the methodology used by others in his or her field, then the evidence passes muster. It is a
different matter, however, if the testimony is so totally at odds with the underlying data that it
renders the opinion mere subjective speculation. Rosen v. Ciba–Geigy Corp., 78 F.3d 316, 318
(7th Cir. 1996) (without proper foundation opinion is unscientific speculation); In re Joy
Recovery Technology Corp., 286 B.R. 54 (Bankr. N.D. Ill. 2002). “[N]othing in either Daubert
or the Federal Rules of Evidence requires a district court to admit opinion evidence which is
connected to existing data only by the ipse dixit of the expert.” General Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997).
The following are examples of what situations may lead a court, applying Daubert, to
admit or exclude the expert testimony. It is generally true that the qualifications of the expert are
less important than the methodology and reliability of the opinion. For example, the fact that an
expert had never testified in a bankruptcy case or was not published and had worked primarily as
an estate tax consultant did not bar the testimony under Daubert. In re Joy Recovery Technology
Corp., 286 B.R. 54, 72 (Bankr. N.D. Ill. 2002).
442
American Bankruptcy Institute
Sparkling credentials are no guaranty of admissibility. Despite years of experience as an
economist, a witness was not qualified to testify as an expert regarding the telecommunications
industry. In re Worldcom, Inc., 371 B.R. 33, 41–44 (Bankr. S.D.N.Y. 2007). “Where the
assumptions underlying an expert's opinions are unsupported and speculative, the expert's
testimony may properly be excluded.” Id. The testimony of a real estate developer concerning
whether a particular debt was incurred in the ordinary course of debtor's business was excluded
because the expert could not explain how that experience “leads to the conclusion reached, and
why that experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts.” In re Husting Land & Development, Inc., 255 B.R. 772, 781 (Bankr. D.
Utah 2000).
In short, there must be an appropriate fit between the qualifications and the opinion.
Opinions as to the future housing market in a particular location were not admissible because the
witnesses could not explain how their specialized experience led them to their conclusions that
the housing market would rebound by a specific year, why their experience provided a sufficient
basis for any projection or how their experience was reliably applied to the facts. In re Smitty
Inv. Group, LLC, 2008 WL 2095523 (Bankr. D. Idaho 2008). “The expert relying on experience
‘must do more than aver conclusorily that his experience led to his opinion.’ ” Id. (citing Lippe v.
Bairnco Corp., 288 B.R. 678, 686 (S.D.N.Y. 2003)).
Perhaps most broadly, an expert’s testimony should be admissible if he or she can
connect the qualifications and methodology to the opinion. The inability of the expert to be able
to explain step by step how and why she reached her given conclusions, or to explain a number
of variables and assumptions, will lead to exclusion. See Lippe v. Bairnco Corp., 99 Fed. Appx.
274, 279 (2d Cir. 2004) (valuation testimony). “Any step that renders the analysis unreliable ...
443
Annual Spring Meeting 2013
renders the expert's testimony inadmissible. This is true whether the step completely changes a
reliable methodology or merely misapplies that methodology.” In re Paoli R.R. Yard PCB
Litigation, 35 F.3d 717, 745 (3d Cir.1994). And not surprisingly, the inability to share the
methodology used because it was claimed to be proprietary will render the opinion inadmissible.
In re Ondova Ltd. Co., 2012 WL 5879147 (Bankr. N.D. Tex. 2012).
The Gatekeeper
In Daubert and Kumho, the Supreme Court also emphasized the gatekeeping role of the
trial judge in determining whether the expert testimony should be heard by the jury. As the Court
stated in Kumho:
The objective of that requirement is to ensure the reliability and relevancy of
expert testimony. It is to make certain that an expert, whether basing testimony
upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the
relevant field. Nor do we deny that, as stated in Daubert, the particular questions
that it mentioned will often be appropriate for use in determining the reliability of
challenged expert testimony. Rather, we conclude that the trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable. That is to say, a trial court should
consider the specific factors identified in Daubert where they are reasonable
measures of the reliability of expert testimony.
526 U.S. at 152. The trial court’s gatekeeping function is, of course, an important control in jury
trials, lest juries be exposed to unreliable evidence for making their decision even if the evidence
is excluded after presentation. Bankruptcy trials and hearings are to the bench, however, not to a
jury. Nonetheless, although the gatekeeper role of the court may said to be “relaxed” or “less
critical,” it is not eliminated. In re Commercial Financial Services, Inc., 350 B.R. 520, 527
(Bankr. N.D. Okla. 2005).
444
American Bankruptcy Institute
While experts who commonly appear in bankruptcy cases—accountants, valuation
experts, and solvency experts—enjoy more leeway on whether their opinions satisfy the
threshold of FRE 702, that is no guaranty of persuasiveness. As one court put it:
[e]xperts in disciplines that require the use of professional judgment are less likely
candidates for exclusion because challenges may be ultimately viewed as matters
in which reasonable experts may differ in exercising their judgment as to the
appropriate methodology to employ or the appropriate variable to plug into a
calculation. Such matters may be and should be explored and highlighted through
cross-examination of the expert and presentation of contrary evidence, not at the
preliminary admissibility stage. In non-scientific disciplines, assuming that the
opinion addresses a factual issue of consequence to the legal regime underlying a
claim or defense, where the use of professional judgment may produce a broad
range of acceptable opinions, so long as the expert possesses at least one of the
qualifying attributes listed in Rule 702 (specialized knowledge, skill, education,
experience or training), has employed a methodology recognized in the profession
or by the courts, and can identify the source of the facts and data underlying the
opinion (demonstrating a connection of the opinion to the facts of the case), a
probing cross-examination and presentation of opposing experts and evidence will
permit the fact-finder to judge the soundness of the expert's judgment, as well as
the expert's credibility and potential bias, in order to assess how much weight to
accord the expert's opinion.
In re Commercial Financial Services, Inc., 350 B.R. 520, 528-529 (Bankr. N.D. Okla. 2005). The case of In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 2008
WL 2324112 (S.D.N.Y. 2008) is a good illustration of how not to present a non-scientific expert.
In that case, the expert was tasked with determining the value of certain real property that
suffered from MTBE contamination. The expert cited market data, but failed to explain the
relationship between the data and the conclusions of value. Moreover, the court noted that the
expert’s opinion contained
vague statements or a simplistic description of the market without any analysis.
For example, Langer [the expert] writes: ‘The percentage of sale price as
compared to list price is an important factor .... The 2001 value was particularly
low.’ Likewise, he provides a litany of ‘important factors that can effect [sic] the
value of these properties.’ But nothing in his expert report explains how these
factors affect the value of plaintiffs' property in Fort Montgomery except for
445
Annual Spring Meeting 2013
stating the obvious conclusion that it would better to have properly that has not
been contaminated with MTBE.
Finally, the court found that the expert failed to explain how his opinion followed the Standards
of Professional Appraisal Practice (“USPAP”).1
To emphasize the importance of the methodology, rather than the qualifications or
outcome, in a different case, the fact that a forensic accountant did not have experience specific
to a particular industry did not bar testimony about the adequacy of the debtor's financial records.
Thus, an expert need not have experience in a particular industry in order to be admitted as an
expert, so long as the methodology fits. In re Masella, 2007 WL 2302312 (Bankr. D. Conn.
2007) (gaming industry) (citing Wechsler v. Hunt Health Systems, Ltd., 381 F.Supp.2d 135
(S.D.N.Y.2003) (forensic accountant qualified to testify as an expert despite a lack of experience
in the health care industry)); but see In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 745 (3d
Cir.1994) (chemical testing on animals may not translate to human medical conditions).
Weight Not Admissibility
When faced with a Daubert challenge, courts often recite a refrain familiar to most
attorneys: the “arguments better relate to the weight, rather than the admissibility,” of the expert
testimony at issue. With regard to this familiar refrain, note that
the Daubert factors apply not only to the admissibility of evidence, but also apply
to weight and credibility determinations. See e.g., Elliott v. Commodity Futures
Trading Comm'n, 202 F.3d 926, 934–35 (7th Cir. 2000) (affirming district court's
decision to ignore unreliable testimony and finding that a “fact-finder should
employ the reliability benchmark in situations ... in which unreliable expert
testimony somehow makes it in front of the fact-finder, and assign the unreliable
testimony little if any weight”); Libas, Ltd. v. U.S., 193 F.3d 1361, 1366
1
Other courts, however, have concluded that the failure of an appraisal to comply with USPAP will not
necessarily require rejection of a valuation opinion, though it will affect its weight. In re Creekside Sr. Apartments,
LP, 477 B.R. 40, 65 (B.A.P. 6th Cir.2012).
446
American Bankruptcy Institute
(Fed.Cir.1999) (reliability of expert testimony applies to the weight accorded to
that testimony as well as its admissibility).
In re Lehman Brothers Holdings Inc., 445 B.R. 143, 185 (Bankr. S.D.N.Y. 2011). The Lehman
court noted that where the expert “made no attempts to reconcile his view with a number of real
world events” and “fail[s] to acknowledge and account for these events,” the testimony will be
excluded. Point Prods. A.G. v. Sony Music Entm't, Inc., 2004 WL 345551, at *7, *10, *12–13,
(S.D.N.Y. Feb. 23, 2004). “[F]ailure to look” at facts, “even for a reality check” means that an
expert lacks sufficient facts and renders his opinion unreliable. Zenith Elecs. Corp. v. WH–TV
Broad. Corp., 395 F.3d 416, 418 (7th Cir. 2005).
At the same time, it has been held that when an expert witness used an accepted
methodology, but relied on flawed data, the flaws affected the weight, i.e. the credibility, to be
accorded the evidence, not whether it should nonetheless be admitted. In re Creekside Sr.
Apartments, LP, 477 B.R. 40, 65 (B.A.P. 6th Cir. 2012). “The identification of such flaws in
generally reliable scientific evidence is precisely the role of cross-examination.” Quiet
Technology DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003).
Legal Experts
The extent to which an expert may testify to arguably legal conclusions remains an area
of significant confusion. In In re Hake, 2007 WL 7581218 (Bankr. N.D. Ohio 2007), the witness
was allowed to testify as to the “the completeness and/or adequacy of Debtors' schedules”
despite the fact that this “is one of the ultimate legal issues for th[e] Court to decide.” Similarly,
an expert was permitted to cite the Uniform Fraudulent Transfer Act and use its terms of art in
expressing his opinion on insolvency because he was able to demonstrate that his conclusions
were “based on applying accounting rules to [] financial reports.” In re Joy Recovery Tech.
Corp., 286 B.R. 54, 68 (Bankr. N.D. Ill. 2002). The court in Joy regarded the witness’ conclusion
447
Annual Spring Meeting 2013
that “the LBO Transaction [sic] left [the debtor] with unreasonably small assets in relation to its
business and the liabilities of that business; and [the debtor] intended to incur debts beyond their
ability to pay them as they came due,” as mere surplusage, but stated that such language would
not have been permitted if the case was tried to a jury.
Generally, however, opinions that draw legal conclusions improperly invade the role of
the judge. Hygh v. Jacobs, 961 F.2d 359, 363 (2d Cir. 1992) (quoting advisory committee's note
for rule 704); Panter v. Marshall Field & Co., 646 F.2d 271, 293 n.6 (7th Cir.1981).
Conclusion
For bankruptcy practitioners, a working knowledge of FRE 702 and Daubert are
essential. For both experts and counsel, cases applying the Daubert standard can be a valuable
resource both about pitfalls to be avoided and what courts have found either convincing or
unpersuasive. A remarkable (and free) collection of over 800 Daubert cases, indexed in various
ways, can be found at www.daubedrtontheweb.com.
448
American Bankruptcy Institute
Observations from “The Other Side”
Dos and Don’ts for the Courtroom1
The Honorable Janet S. Baer
United States Bankruptcy Court for the Northern District of Illinois, Chicago
Having now been on the bench a year, I am amazed at some of the things I have seen.
The Judge really does have the best seat in the house, and oh what we see! I had no idea how
pronounced, for example, a tiny facial expression can be when viewed from the Judge’s
perspective. Wow. I sure hope I did not, as a lawyer, subconsciously do some of the things I
now see others do on a regular basis.
Some of what I have observed and share here may seem really obvious. But, it is
noteworthy enough to point out anyway. Other things … may not be so obvious. I provide you
with these impressions out of concern and respect for lawyers, their clients and the experts. Hey,
I was a practitioner for 28 years! I still feel I am one of you! So, I am now going to let you in on
a few things I have seen as a Judge that you might want to think about, given it is generally the
Judge whom you need to reach, impress and/or persuade.
First, some “dos and don’ts” on what I will call Behavioral Etiquette in the courtroom.
These apply to lawyers and witnesses especially, but also may apply to clients who are with you
in the courtroom.
Do dress appropriately, please.
There is really no such thing as business casual in the courtroom. If you want to be taken
seriously and have the Court listen to what you are saying rather than focus on what you are
wearing, be careful what you wear.
1
I would like to thank my colleague and mentor Judge Ben Goldgar for his thoughts on this subject and many
others and direct you to his presentation, from which I borrowed liberally, “Did You See What Happened in Court
Today? A Demonstration of Worst Practices (vs. Best Practices) for Judges and Attorneys” (American
Bankruptcy Institute 2011), available at www.abiworld.org/CS11/materials/DidYouSeeWhatHappened.
449
Annual Spring Meeting 2013
•
Women should not wear plunging necklines. This is just as distracting to a female
judge as a male one … although perhaps for different reasons. Remember, we are
generally elevated on the bench. That means we physically look down at you!
•
A hot pink tube top is never proper attire – even under a navy blue suit. Do stores
even sell tube tops anymore? Likewise, a crop top is not proper, nor is a threepiece suit with no blouse. And, yes, I have seen all of these in Court.
•
Do not wear excessive or noisy jewelry. This goes for men, as well as women.
•
Do not wear sunglasses, a hat or an overcoat, except upon arrival to Court at
which point you should take each of them off.
•
Do not wear enough perfume or cologne for anyone other than you to smell.
The only exceptions to the above are:
•
You did not expect to be in Court and do not have appropriate business attire with
you.
This happens. Just explain the situation. I, myself, have had to hear
emergency matters in jeans on Fridays, so I get it (although, I never get caught
because I have a robe). Just be polite and apologize. At least the Court will know
that you take the situation seriously.
•
Consumer debtors. Frankly, they may simply not have anything other than Tshirts and jeans. But they really should think about what it says on their T-shirts
when they come to Court. My favorite so far has been a T-shirt on a rather large
man that said: “I’m the big one!”
450
American Bankruptcy Institute
Do not chew gum.
Not at the podium and not on the witness stand. And, as I have come to discover,
probably not anywhere in the courtroom. The one with the black robe in front sees and hears all,
and most people really do not chew gum quietly or subtly. I am from Wisconsin. I know what a
cow chewing its cud looks and sounds like and, well, that is what I see and hear in my courtroom
when some of you chew gum.
Do be quiet, everywhere.
While you are in the courtroom waiting to appear or testify, do not talk to others, rustle
your papers, or read the newspaper (it really makes lots of noise). Go ahead:
read your
pleadings, your report, your notes, a book or even your Blackberry – as long as it does not rustle,
click or ding when you touch it. I cannot sit for more than two minutes without reading
something. I just get bored, so I get it, and chances are the cases before yours are, in fact, quite
boring. But be mindful of what you are doing. Don’t distract or annoy the Judge before you even
approach the podium or take the stand.
Do turn off or silence your cell phone.
I know: you are not morons; everyone knows to turn off their phones. Do I need to
repeat it? Well, yes, I do. Cell phones and Blackberrys are allowed in the courtroom and, when
not on the bench, I spend as much time on my I-phone looking at e mails as all of you. But
please keep in mind the noise problem, as well as common courtesy. Please, please make sure
your ringer AND VIBRATE are off. It is almost worse when your device vibrates and the Court
hears or sees it doing so.
Here are some of the most recent offenses I have seen that make my point:
451
Annual Spring Meeting 2013
•
A lawyer was appearing before me while on a conference call with a downstate
court – she actually stepped up to the podium and began arguing before me but
had to stop in mid-sentence in order to address the other court on the phone.
Really!
•
Counsel was at the podium arguing a matter when her cell phone, which was left
on the wooden bench, started to vibrate. It sounded like someone was chopping
down a tree with a chain saw.
•
I have had several lawyers who argue at the podium and check their e mails while
the Court or other counsel are speaking on the matter. This is kind of like your
spouse checking his e mail while you are trying to explain something to him or,
even better, while you are out trying to have a romantic dinner…
•
And, okay, this happened to me! My cell phone, which was in my purse, recently
rang when I was sitting in the back of the courtroom of one of my colleagues
waiting to go out to lunch with him. How embarrassing!
Hey, it happens to all of us. We live connected to these things. This is just another
reminder to think about these devices before you enter the courtroom.
Do be nice and thoughtful in how you address counsel and the Court.
•
Watch how you say it.
•
Never get emotional.
•
Do not interrupt counsel or the Judge when she is talking.
•
When the Judge interrupts you, stop talking immediately and listen to what she
has to say. She gets to interrupt all she wants.
452
American Bankruptcy Institute
•
Answer the Judge’s or counsel’s question in a respectful manner no matter how
stupid the question is.
•
Generally, do not attempt to be funny. It usually goes over like a lead balloon.
This does not mean you cannot be relaxed and charming under the right
circumstances. Just don’t try to be the class clown.
•
Do not tell the Judge she is asking the wrong question or change the subject.
Answer the question.
•
DO NOT CALL THE JUDGE MA’AM OR SIR. Judges are “YOUR HONOR.”
•
Do not refer to men as “Mr. X” and to women as “Susan…” Everyone is “Mr.”
and “Ms.” (not Mrs. – that annoys unmarried women to no end…)
Do be very, very mindful of your body language.
•
Keep a poker face if at all possible.
•
Frowns, smirks, winces, rolling of the eyes, winks, and other gestures are all very
common, and often times you do not even know you are doing them. However,
they can really make an impression on the Judge.
The first time I ruled against a lawyer who reacted with a roll of his eyes, I was
flabbergasted. He might just as well have said to me: “That is the dumbest thing you could
possibly do you ignorant woman.” That is how bad it can look from my side of the bench. [The
funny thing is, I am not even sure that counsel knew he rolled his eyes. In fact, as it turns out,
this guy, a consumer lawyer who is a regular in my courtroom, rolls his eyes every time he
disagrees with me and winks every time he agrees. I do not think he realizes he does it. And,
now that I know him and his “twitches,” I ignore them.]
453
Annual Spring Meeting 2013
But you may not get the chance to cultivate that kind of a relationship with the Judge if
you are there only once in awhile. So watch out for your “tells.”
Do be careful where you are looking.
•
When at the podium, counsel should address the Judge, always. Do not look at or
talk to opposing counsel or your client. When questioning a witness on the stand,
look at the witness.
•
Witnesses should look at questioning counsel on direct and cross. But, in
answering a question, they should not hesitate to look at the Judge once in awhile,
especially when making a key point.
•
Witnesses should avoid looking at the client or her counsel (as if they are seeking
guidance or approval) when under cross-examination or when being asked
questions by the Court.
Do watch the Judge’s body language.
The Judge’s body language and facial expressions during argument and the course of
expert testimony can provide valuable insight as to whether the message is being embraced (or
perhaps dismissed) by the target audience (i.e., the Judge).
Do not EVER use the following two phrases:
“With all due respect” – We all know this means you have no respect whatsoever for the
person the phrase is directed at. This is especially a problem when you say: “With all due respect
your honor…”
“To be perfectly honest” – This suggest that everything else you said was a lie or that you
are not “perfectly honest” all of the time.
454
American Bankruptcy Institute
Okay. That is a start regarding some practical ways to behave in the courtroom. Now, on
to what I will call Substantive Etiquette “dos and don’ts.” These comments relate generally to
expert witnesses or counsel who are questioning an expert on the stand.
Do dumb it down. Keep it simple. Be organized.
In talking about effective brief writing, Judge Posner of the 7th Circuit Court of Appeals
said recently that judges are not experts in all fields. As a result, he suggested that when writing a
brief, keep it at a kindergarten level. (Yes, that is actually what he said.) The same applies to
expert testimony. Keeping it simple will not insult the Judge - it will help the Judge.
Judges are ignorant. They do not know the facts of your case like you do. They very
likely do not know the industry you are testifying about or what your collateral really is or what
neighborhood the building is located in.
Do not use industry jargon or acronyms.
Once you get past GAAP, that should be it. Use real words! My major in college was
Radio, TV and Film. One of the bankruptcy judges on our bench was a music major. The
majority of our bench does not consist of former bankruptcy lawyers. I do not believe a single
one of us has any accounting background. Please be mindful of what the Judge may – or may
not – know.
Do use everyday vocabulary.
Use words your 4th grader would know. Do not make the Judge have to go back in her
chambers and use a thesaurus before she knows what you are talking about or, worse yet, have to
ask you at the podium or on the stand what a word means.
455
Annual Spring Meeting 2013
I used to have a partner who was an avid reader, of ancient texts, military journals and
old English papers. I routinely had to ask him what the heck a word he used meant just to
understand his jokes. “Big words” do not generally impress judges. Simplicity and clarity do!
Do not assume!!!
Never assume the Judge knows what you are talking about. Provide background, explain,
be organized and lay things out in a chronological way. Almost everything may be presented as
if you are telling a story.
Do rehearse your argument.
In the presentation of a matter, oral argument, or your opening statement for a contested
matter, never read from a prepared text. Know your case. Know what you want to say and then
say it. Make eye contact with the Judge and explain your case. It is probably better NOT to
have what you want to say written down word for word. Instead, at most have an outline. That
will keep you on point but keep you from just reading what you want to say. And do rehearse
before you appear for argument in whatever manner you are comfortable rehearsing.
Do rehearse expert testimony and admit you did so.
Preparation is expected, and there is nothing wrong with it.
The expert who says he did not go over his report and prepare for direct and cross
examination with counsel is a liar or a fool.
In your testimony, if counsel strays from the prepared presentation, do not remind him of
that. Listen to his questions and answer them. You have to know your report well enough to be
able to go with the flow.
456
American Bankruptcy Institute
Do maintain the same demeanor on direct and cross.
If you are a witness, make sure you are not Dr. Jekyll and Mr. Hyde. That is, do not be
calm, well prepared, gracious and helpful on direct and then argumentative, evasive and nasty on
cross. This is a sure fire way to ruin your credibility with the Judge. You should know the topic
on which you are testifying and your report well enough that you can maintain the same
demeanor on both direct and cross.
This generally goes for counsel doing the questioning too. Do not be Mr. Reasonable on
direct with your own witnesses and then a jerk to all of the witnesses on cross. You may get a
little worked up on cross if you are dealing with an incompetent or dishonest witness. But,
generally, you can and should handle these situations with calm and grace. Dramatics really
have no place in commercial settings. Save it for your pro bono death penalty case.
Do not bluff.
Do not think you can ever bluff your way through testimony. It is very, very obvious
when you are bluffing and the best way to ruin your credibility.
If you are not knowledgeable on a topic that is raised by the Judge or on cross, admit it.
You will enhance your reputation for honesty and truthfulness by admitting what you do not
know rather than trying to “fake it.”
Do have your exhibits marked and make sure they have page numbers.
•
Make sure your report and other documents you want to use are identified as
exhibits and that each page has a page number. (The lack of page numbers tends
to occur about 75% of the time in compilations and is very, very annoying.)
•
Never refer to anything in an exhibit or report without directing the Court to the
exhibit number and page number.
457
Annual Spring Meeting 2013
•
If you need to read from an exhibit or report to answer a question on direct or
cross, make sure you first ask counsel or the Court if you may do so; then direct
the Court to what you will read from.
Do not cite to “the other guy.”
Do not tell the Judge that you have addressed the matter or testified in numerous other
courtrooms and that Judges always do X or Y. It suggests to the Judge that you have no
authority to support your argument or request. And guess what? Judges talk to each other, and
about 99% of the time when I check with my colleagues, they say they never do X or Y either!
While I am sure I could come up with many more “dos and don’ts” and war stories to go
with them, I think this is a good start at the more obvious things I have seen in my first year on
the bench. I hope this gives you at least some pause to think about whether you have turned off
your phone, removed your jingling bracelet or marked the pages on your exhibits before you
appear in Court. Now, for those of you who remember “Hill Street Blues” or were even born
when that show was on, “Be careful out there.”
458
American Bankruptcy Institute
THE NON-VERBAL KEY TO CREDIBILITY
As we attorneys search for our experts, we are cognizant of concepts like qualifications of the
expert, admissibility and relevance of planned testimony and perhaps we have even come to
focus more on "reliability" since the Daubert case was decided.1
But how often do we assess the presentation skills of our chosen witness. Is this witness
persuasive? Is he/she credible? How do we assess and further prepare the witness to maximize
credibility?
Reputation is clearly important and, in our close-knit bankruptcy world, it is relatively easy to
get the scoop on your expert from colleagues. But how reliable is that scoop? We may tend to
back away from a potential expert if we get a lot of negatives in response to our inquiries, but if
we receive a positive reference, what more can and should we do to ensure the expert is right for
the case at hand. Some issues to consider:
•
•
•
•
•
•
What experience does this expert have before your judge? Can you determine whether
the expert has been relied upon by the judge and found to be credible?
What is the reputation of the expert in his or her field?
What adverse publications or actions or prior testimony exist that are counter to the issues
to be asserted by the expert in this specific situation?
How extensive is the expert's education and experience in the specific field of testimony
that he/she will be providing?
What relevant experience does the expert have with the particular industry or geographic
location or whatever is relevant to the testimony?
Do you need more than one expert because the issues are broad or have several
components critical to the decision to be made? (Don't "stretch" you expert beyond his
or her areas of expertise.)
Once you have dotted the "i's" and crossed the "t's" to find the qualified expert, you have not yet
checked all the boxes needed for credibility or persuasiveness. You must go further and evaluate
the expert's presentation skills and sharpen them where needed to maximize the value of the
testimony.
•
The expert must be clear and firm about his/her opinions, but where there are areas that
cannot be determined by anyone with absolute reliability, that should be admitted.
1
Daubert v. Merrill Dow Pharmaceuticals Inc. 509 US 579 (1993) (Case on admissibility of scientific expert
testimony which has been applied beyond the scientific realm.)
459
Annual Spring Meeting 2013
•
The expert must convey to the trier of fact that the expert "believes" what he/she is saying
. . . not that he/she is saying it because he was paid to say it.
•
The expert must appear objective rather than biased and must use a combination of
objectivity, knowledge and persuasion to convince the trier of fact to adopt his/her
position.
•
Preparation is a key component, particularly when it comes to cross-examination. The
preparation should anticipate and deal with the difficult questions likely to be raised but
must appear unrehearsed. The witness must listen closely to the question, clarify any
ambiguity and give a thoughtful "spontaneous" response. And the credible witness must
know when and what points to concede. The likelihood is that each side is at least partly
correct on the issues. The witness who refutes and argues every point raised by the
adverse party's attorney loses credibility.
Body language is critically important -- perhaps more even that the spoken word. We react
unconsciously to body language and tone of voice at a visceral level. The impact on credibility
can be so strong and the trier of fact may not even always be aware of how he or she is being
influenced -- positively or negatively -- by the witness' body language. Non-verbal language has
been described as "primal" and our response to it is the same. We often do not even realize what
is coloring our reaction.
Examine your potential witness for his/her non-verbal communication. If possible, observe
actual testimony by the witness. Or, if this is not feasible, conduct a practice session that is as
real as possible with attorneys playing the various roles. Be sensitive to and help your witness
with non-verbal communication issues.
460
•
The witness must "perform" his/her role in a natural way, as an actor would on the stage.
If the presentation sounds rehearsed or contrived, it loses credibility.
•
The witness must monitor the attention being paid by the trier of fact, particularly when
an important point is being made. Is the judge listening or has he/she been lulled into a
trance by boring, detailed, background testimony that has droned on and on? Vocal
changes in tone, tempo and loudness should be used to prevent boredom. Complex
material should be boiled down and made as interesting as possible. If necessary, use
visual aids to explain or keep the trier of fact engaged. When a critical point is being
made, the witness should be sure that he/she has the judge's full attention. The witness
should watch the judge's face and his/her non-verbal communication for feedback on
how the testimony is being received.
American Bankruptcy Institute
•
Body orientation is an important communicator. The witness must have an open posture
as that communicates an open, unbiased perspective. It influences the trier of fact's
perception of the witness' honesty, integrity and truthfulness.
o
Arms: The witness should not fold arms over his/her chest or abdomen and
should not wear a vest or have a suit coat that is buttoned.
o
Hands: Hands should be displayed in an open, palm up fashion, never and a
balled fist. The witness should never grip the sides of the witness box or the chair
as if holding on for dear life. Gestures are certainly permissible and should be
broad and open and coupled meaningfully with testimony. For the trier of fact
who is visual, gestures should tie meaningfully to verbal points made and to
exhibits that do the same.
o
Body Orientation: The fact that a witness is hidden away in a witness box creates
its own barriers, not to mention making eye contact with the trier of fact difficult.
The witness should not add to these barriers by his or her behavior. The witness'
arms should be on the side of the chair in an open posture and papers or briefcases
should be off the lap. If extensive papers or materials are necessary, they can be
handed up by the questioning attorney or, in some cases, it is appropriate to ask
permission for a table to be placed by the expert to contain exhibits or documents
that the expert will refer to (with Court permission, of course).
•
Body orientation is both important and difficult given the confines of the witness box.
The best persuasive orientation is for the entire body to squarely face the person you seek
to persuade. It is the opposite of "turning your back," the ultimate negative
communication. A sideways posture is traditionally a defensive posture. In our
courtroom settings, the judge understands that the witness is seated in a confining space,
but the witness should look for opportunities to turn the body and head as much as
possible to address the judge. This is most important when there are critical points to be
made. Some witnesses look at the attorney to receive the question and then turn to look at
the judge to answer. If this is done with each question, this can be tiresome and artificial.
The better policy is to answer routine questions facing the attorney but with sensitivity to
the fact that the judge is listening. When a critical explanation is being made or a point is
being driven home, that is the time to turn the body as much as possible toward the judge
and make that very important eye contact. While speaking, the witness should be
"reading" the judge's non-verbal communication to be sure the point is getting across.
Also, the attorney can signal an important point by beginning the question with, "Tell the
judge . . ."
•
Tension in the witness' body communicates discomfort. Witnesses need to be
comfortable with themselves, their material and the courtroom process. This is especially
461
Annual Spring Meeting 2013
the case the case during cross-examination. The opposite of tension and discomfort is
relaxation and confidence. Tension comes out through body posture (sitting stiffly on the
edge of the seat), facial expression (frowning, muscle tightness, clenched teeth,
prominent throat muscles, rapid eye movement or blinking, licking of the lips, etc.).
•
Eye contact is a non-verbal communication we inherited from our animal ancestors. In
the animal world there is the dominant and the submissive (the alpha dog and the rest of
the pack). Whether we consciously recognize it or not, we read much into our eye
contact with others and the eye contact we observe between two other parties. The
witness' goal is steady, non-glaring, non-threatening eye contact. The witness with open,
steady direct eye contact communicates that he/she is at least the equal of the other party,
vis-a-vis, the witness' knowledge of the issue at hand. When asked a question, the
witness who drops his/her eyes or head can be perceived as hiding something or
fabricating an answer. The witness should maintain eye contact while formulating an
answer. Often, the witness will unconsciously allow his/her eyes to glance upward to the
right or left. This is actually an involuntary reflex that is part of information retrieval and
is normal activity. But when the information has been retrieved, the eyes should re-focus
on the questioner or turn to the judge to respond.
When opposing counsel tries to use pointed and hostile eye contact to challenge or
intimidate a witness, it is critical to credibility that the witness not look away. To do so
allows the other party to be perceived as dominant and signals that the witness is
submitting to that dominance on this issue. In the perception of the trier of fact, this may
communicate that the questioner is right or has the stronger position.
Eye contact between the witness and his/her attorney is also very important. Focusing
the eyes on the attorney when he/she is asking questions shows respect and attention (as
opposed to multi-tasking and listening while searching for a reference in a stack of
papers.) Similarly, the attorney should look directly at the witness while asking questions.
This evidences respect for the witness. The witness and attorney are a team and can and
should enhance each other's credibility. For example, if opposing counsel interposes an
objection, the witness should listen and then look to his/her attorney for guidance before
proceeding. The courteous eye contact with the questioning attorney communicates
respect for his/her role in the process and communicates the confidence that the witness
feels even when facing opposing counsel. The trier of fact perceives this behavior by the
witness as openness and readiness to respond to questions . . . which enhances the
witness' credibility.
•
462
The tactic of delay also plays into non-verbal communication. An individual who makes
the other party wait has also established that he/she is in control of the situation.
Therefore, if the opposing attorney employs this tactic during questioning, the witness
should patiently wait, stay in steady eye contact, and avoid looking disturbed or
American Bankruptcy Institute
impatient. The witness should not look down or away. When the opportunity presents
itself, the witness can turn the tables and make the questioning attorney wait while
documents are being retrieved to extract data or refresh memory. The person who is
forced to wait becomes the submissive party since the delaying party is the one in control
of when the interaction resumes. The witness can use this strategy to slow down the
questioning and assume the dominant role, but it should not be exercised often or for so
long as to make the trier of fact impatient.
•
Feet can be a significant negative communicator but, fortunately, the witness box usually
hides them. The witness' feet are therefor usually not on the radar in the testimony
situation. Nonetheless, the witness' feet should be solidly planted in the witness box and
should not be tapping or shuffling. Movement of feet is a signal of discomfort or
distraction and therefore further undermines credibility.
•
The witness' posture during the presentation is critical. No shifting around in the seat is
allowed as it telegraphs discomfort with the question or difficulty in formulation of the
answer. The witness should not suddenly lean back as if hit broadside by a question. It is
better to generally remain in upright posture, which is neutral, and then when a key point
is to be made, lean forward slightly. Upright posture is neutral and is ideal for listening
or for answering background questions and providing factual explanations. To lean back
communicates avoidance, discomfort or lack of interest. To lean forward emphasizes the
point being made and communicates confidence and the desire to communicate to the
listener. This forward stance is perceived as "reaching out" to the other side to share
information and is the most persuasive position.
•
Gestures have a place in the courtroom. They give the witness an opportunity to show
his/her openness. Broad gestures communicate self-confidence but should not be so
flamboyant as to distract the trier of fact from the information being communicated.
When making hand gestures, the witness should generally use an open palm and not
make gestures close to the body, but rather stretch out the arms to make the gesture. This
simple formula increases the personal space the witness absorbs and adds to the powerful
persona of the witness.
•
Fidgeting is totally unacceptable. The witness should not touch face or body parts, wring
hands, wipe the brow, run fingers through hair, straighten clothing or place hands in
pockets, etc. Not only is it distracting, it creates the impression of discomfort or
disinterest, either of which negates credibility. Items like a pencil or pointer may be used
but should be laid aside when their role is complete. If there is much paraphernalia, a
visit to the courtroom to see where items can be kept, accessed and set aside (without
rolling off on the floor) is a good idea. The confident witness has what is needed at his or
her fingertips and does not distract the trier of fact by shuffling papers or dropping items.
463
Annual Spring Meeting 2013
•
The importance of a witness (and therefore his/her credibility) can be enhanced by
freeing the witness from the witness chair. If there is a chart to be explained, consider
letting the witness go to the chart and explain it. This gives the witness an opportunity to
turn his or her body full on toward the judge. In moving around the courtroom, the expert
is establishing control over territory. This is probably more important in a jury setting
than it is in a trial before a judge, but it still has value.
Handling aggressive counsel is a sensitive issue that can enhance or detract from the witness'
credibility. Opposing counsel has been known to try to invade the witness' space by approaching
too closely, pointing to the witness, interrupting or glaring. These are non-verbal assaults and
must be met carefully and forcefully by the witness. In these circumstances, the appropriate
response by the witness is not to stare back, certainly not to look down or roll the eyes up . . . not
to look imploringly at his/her own counsel or at the judge . . . but according to the psychologists,
to look sideways away from the assault. Turning the head sideways means the expert is not
looking at the person who is attacking him. By this response, the witness refuses to be
intimidated by the attorney's aggressiveness and, hopefully, it defuses the opposing counsel's
attack. If opposing counsel interrupts an answer, the witness should continue talking so long as
he/she is answering the question asked. Interruption of the response by the attorney is an
invasion of the witness' space and an attempt to exert dominance over the witness. In our courts,
it is often the case that the judge will intervene in these circumstances but, until that happens, the
witness should continue with his/her answer. In a jury situation, the jury is likely to perceive the
offending opposing counsel as disrespectful of the witness.
The literature abounds on non-verbal communication techniques and how to use them. This
often-overlooked area can significantly enhance or detract from credibility.
464