Ask the Experts: Tips on Testifying
David A. Martindale, Timothy M. Tippins
AFCC eNEWS, v11, n10, October 2016
“The Importance of the Evaluative Task“
Before there is testimony, there is a report; before there is a report, there is a professional task to be performed. Approach the task with an appreciation for the impact that your work will have on the lives of the litigants and others who are affected by the litigation. As you prepare your report, recognize the potential impact of your words.
Read and use the empirical research of your discipline. Anchor your inferences to reliable and valid empirical research that provides the major premise(s) for your conclusion(s) about the case-specific information you have collected.
If you want to say, for example, that you observed parental behaviors A, B and C, and that those behaviors increase the probability of child related-outcome D, then cite the peer-reviewed, published research that supports the relationship between the described behaviors and the described outcome.
“There is an important difference between an expert opinion and a personal opinion. When an expert has formulated an opinion, it is reasonably presumed that the expert has drawn upon information accumulated and published over the years. The defining attributes of an expert opinion relate not to the credentials held by the individual whose fingers type the words or from whose mouth the words flow; rather, the requisite characteristics relate to the procedures that were employed in formulating the opinion and the body of knowledge that forms the foundation upon which those procedures were developed. If the accumulated knowledge of the expert’s field was not utilized, the opinion expressed is not an expert opinion. It is a personal opinion, albeit one being expressed by an expert” (Martindale, 2001, p. 503).
It should be noted that judges are also expected to exercise care with regard to the possible intrusion of personal perspectives into the judicial deliberation process. In its Decision in Troxel v. Granville, the United States Supreme Court noted with disapproval that the Superior Court trial judge had deemed it appropriate to “’look back at some personal experiences. . . .’” (530 U.S. 57 , at 61).”
[The article goes on to address the following topics:]
- Create and maintain an exquisitely organized file Do your homework [know the facts, know the research basis for conclusions]
- Show up on time
- The full monty: bring your entire file to court
- The really big file [bring it]
- Be truthful, accurate, and maintain neutrality
- Eschew obfuscation
- Think preemptively [anticipate cross-exam questions and address in direct exam]
- Don’t be disrespectful of the process
- Yes or No doctor? [give full answer in re-direct examination, ask if explanation is being requested]
- Dealing with hypotheticals [avoid resistance]
- Listen and correct [don’t let the attorney add words/concepts to your statements]
- Don’t model bad behavior [stay calm, maintain equipoise]
- Review your review
- Inordinate fees adversely affect your credibility
- Avoid opining on the issues [don’t step outside your scope]
- Emphasize the record [stay focused on the facts]