August 16, 2012

Reflections of an Expert Witness

Dr. Stanley Tocker, who has testified in over 25 legal cases as a consultant and expert witness, recently shared some insight into his experiences as an expert witness.

Q: What makes a good expert witness?
Tocker: First, you must know your subject, especially the par­ticular area involved in the case in which you are testifying. Then, you must be able to document your expertise, through academic credentials and/or in-depth experience. Finally, you must look and sound as if you know your stuff.

Q: Why are expert witnesses needed?
Tocker: Prevailing in technical law cases often depends almost as much on the quality of experts as on the skill of attorneys. By quality I mean not only knowledge and credibility but also such factors as stage presence, creativity and self-control in court appearances.

Q: Why are an expert witness's qualifications so important?
Tocker: Opposing counsel can challenge your qualifications as an expert witness, in order to reduce the impact of your report and testimony. This challenge can range from probing questions - intended to embarrass you or throw you off your stride - to questions about your school grades, your licenses, your moral standing,  or your other witness work. You can't get impa­tient - sometimes you have to have a thick skin.

Q: Can you give us a personal experience about this?
Tocker: Recently I sat through a five-hour deposition while five attorneys were trying to disparage my credibility and testi­mony. The first 90 minutes were a tedious review of my back­ground, as well as irrelevant personal questions which were clearly an attempt to show that I was a "hired gun" who could not be trusted. Later they asked many questions related to the substance of the case in many different ways, to attempt to discover a contradiction.

Q: Should you agree to be an expert witness in every case?
Tocker: No - only in those cases in which, in good conscience, you can testify honestly and objectively. You should ask the attorney who retained you for all information he or she has about the case – both positive and negative – to make an informed decision about whether to testify. You should think of yourself as a teacher instead of an advocate for the party that retained you.
Q: How do you prepare to testify?
Tocker: First, you read everything that your client's attorney can provide about the particular case and ask any questions that may occur to you. Then, you should review everything you can find about the subject area involved in the case, in order to be knowledgeable about recent developments in the field.

Q: Can you share any of your experiences as an expert witness?
Tocker: Yes, I can think of two cases in which extensive research and preparation made a difference. For example, while looking at the patented technology for a clothes deodorizer in a patent infringement suit, we found prior art in an obscure out­of-print book that was not discovered in the patent, academic or trade literature. This facilitated a satisfactory settlement for the defense. In a personal injury case, we unexpectedly found in the literature the probable presence of trace quantities of phosgene, a deadly toxin, when a commercial cleaner passed through an electric arcing appliance.

Q: How does a deposition differ from a trial?
Tocker: In a deposition, witnesses are questioned under oath only by opposing counsel and their testimony is recorded and becomes part of the record of the case. In a trial, witnesses are questioned both by the opposing counsel and the counsel for whom they are appearing. It's important that your trial testimo­ny is consistent with your deposition testimony.

Q: Is a trial different in any other ways?
Tocker: Yes, because at a trial you are usually appearing before a jury, so you must not only be careful of your spoken words but also your stage presence and believability. Jurors tend to base their opinions on which expert witness makes a better and more sincere pres­entation, especially when the technology involved is complicat­ed.

Q: Have you any tips about testifying?
Tocker: First, tell the truth. Answer questions concisely with a "yes" or "no" unless the question is unclear, in which case you should ask for a clarification. Add a caveat to the “yes” or “no” only if the questioning attorney is attempting to lead you away from your opinion. Don't answer until the attorney has completed asking the question. Never appear hostile, arrogant or unresponsive.

Q: Are there other factors expert witnesses should consider?
Tocker: Yes. For example, you should dress conservatively. You should stay calm. You should look the cross-examiner in the eye and sit upright with good posture.

Q: Any final thoughts about expert witnesses?
Tocker: By participating in the legal process as an expert wit­ness, you are serving a client and a legal system which need your expertise. The experience can be productive, intellectually stimulating and professionally satisfying. I recommend it.

Dr. Stanley Tocker, an Executive Vice President of The CECON Group,  is a highly qualified and experienced expert witness. He was named to the Delaware Environmental Appeals Board and the Delaware Coastal Zone Commission by the Governor of Delaware. A graduate of Johns Hopkins, he received his Ph.D. in Organic Chemistry from Florida State University. His specialties are organic syn­thesis, polymers, pesticides, formulations and patent strategy.

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