TIPS ON TECHNICAL TESTIMONY
THOMAS E. CONE, JR.
BLAIN & CONE, P.A.
202 Madison Street
Tampa, Florida 33602
from Anita C. Brannon
and Dana G. Toole
Presented at the
Florida Water Management Seminar
January 19 January 26, 1985
Pitfalls on Deposition of the Technical Witness 9.1
Written Opinion of Experts 9.4
Communication Techniques for the Expert Witness 9.7
The Problem of Expert Hearsay 9.13
PITFALLS ON DEPOSITION OF THE TECHNICAL WITNESS
1. What is a deposition? A deposition is your testimony under oath.
You.will be asked questions by the opposing attorney and in some
cases by the lawyer representing your client. The questions and
your answers to them will be recorded by a court reporter. No
judge will be present, and in all likelihood the deposition will
be taken in a private office. There is little difference between
testimony taken at a deposition and testimony taken in the court-
room, except no judge presides at a deposition to rule over dis-
putes as they arise.
2. The purposes of the deposition -- The opposing side is taking
the deposition for the following three reasons: First, they want
to find out what facts you have in your actual knowledge and pos-
session regarding the issues in the lawsuit. They are interested
in what your story is now and what it is going to be at the trial.
Second, they want to pin you down to a specific story so that you
will have to tell the same story at the trial. Because they will
have heard your testimony at the deposition, they will know in
advance what your story at trial is going to be. Third, they hope
to catch you in a lie so that they can show at trial that you are
not a truthful person and that your testimony should not be believ-
ed on any points, particularly the crucial ones.
These are legitimate purposes, and the opposing side has the right
to take your discovery deposition for these purposes and in this
fashion. Correspondingly, your client has the same right to take
the discovery depositions of the opposing litigant and witnesses.
3. Pitfalls to avoid -- Always remember that as a witness you have
no purpose to serve other than to give the facts as you know them,
state the facts that you know, and don't worry about the ones
you don't know. Keep the following guidelines in mind when answer-
ing the questions put to you.
a. Make statements only if you know them to be true. You are
likely to be asked several questions, the answers to which
you do not know but think you should know. The temptation
in such instances is to guess or estimate what the answers
should be. This is a mistake. A guess or estimate for an
answer is almost always the wrong answer and one from which
your opponent can show that you either don't know what you
were talking about or are deliberately misstating the truth.
Generally speaking, the opposing attorney knows the answer to
any questions he asks. He may have asked the question be-
cause he knew you would not know the answer but felt that you
would be compelled to guess. If you do not know an answer to
any question, state that you do not know the answer, even
though you think you might appear ignorant or evasive by so
stating. If you do not know certain information, do not give
it. Furthermore, do not turn to your client's lawyer or ano-
ther witness to ask for the information. Also, do not promise
to get information that you don't have readily at hand unless
your client's lawyer advises it. Do not agree to look up any-
thing in the future and then supplement the answer you were
giving at the deposition, unless your client's lawyer
advises you to do so.
b. Do not volunteer any facts not requested by a question.
State the facts that you know in direct response to the
question asked and nothing more. Avoid the temptation to
make additional statements which might appear to you to be
important. Such information cannot help your case and may
hinder it. You are in no way obligated to provide informa-
tion to questions you are not asked.
c. Tell the truth. The truth in a deposition will never really
hurt your client or you. A lawyer may try to explain away
the truth, but there is no explaining why a witness lied or
concealed the truth. Manufactured facts with no basis in
truth or deliberate concealment of true facts would be devas-
tating to your veracity at the trial and would hurt your
client's case immeasurably.
d. Do not try to figure out before your answer whether a truth-
ful answer will help or hinder your case. Answer truthfully.
Your client's lawyer can deal with the truth effectively.
He or she is handicapped in handling the case when you answer
any other way.
e. Do not give opinions hastily. Generally speaking, we will
object to any question that calls for an opinion outside your
area of expertise. After our objection to such a question,
however, we may advise you to go ahead and answer it. At
that time, if you do have an opinion on the subject, you
may give it. You need not explain the basis for your opinion
unless asked to do so.
f. Never attempt to explain or justify your answer. You are there
to give the facts as you know them. You are not supposed to
apologize or attempt to justify those facts in any way. Any
attempt to do so would make you appear to doubt the accuracy
or authenticity of your own testimony.
g. Do not reach in your pocket or purse for any papers or documents
that may be referred to during the deposition. A discovery de-
position is to elicit facts which you know and have in your
mind, not to produce documents. If the opposing side is interes-
ted in obtaining documents from you, they may employ proper le-
gal procedures for that purpose. Similarly, do not ask your
client's lawyer to produce anything in his or her file. Such
papers also may be obtained by appropriate legal procedures and
are not properly produced at a deposition.
h. Do not be in a hurry to answer a question. Take your time.
The length of time that you take in considering your answer will
not show up in the transcript prepared from the deposition.
When you do start to speak, answer the question in a direct and
i. Do not let the opposing attorney get you angry or excited. To
do so would destroy the effect of your testimony and would produce
statements that later could be used to your disadvantage.
Be aware that the opposing attorney may seek to excite
you with the hope of getting you to say things which may
be used against you. By getting riled, you fall right
into his trap. Answer the question truthfully and do not
take it personally or with offense. That way you will
avoid any temptation to become irritated and say things
that you may later regret. An emotional outburst on a
certain point, even though justified by the circumstances
or motivation for asking the question, could be used to
your opponent's advantage in the lawsuit. Give the answer
in the same tone of voice and manner that you would use in
talking with your client directly, or to his lawyer.
j. Never argue with the opposing attorney. By stating your an-
swers truthfully and keeping your cool, you will not give
opposing attorneys any ammunition with which to dispute your
answers. State the facts as you know them to be true and
don't get worried about the way opposing attorneys react to
your answers. The reaction may be an intentional act design-
ed to influence your testimony.
k. Never joke during the deposition. Humor that seems laughable
while sitting around a table will not appear so funny in the
cold transcript typed from the deposition. Jokes and humor-
ous remarks may make you appear crude or cavalier about the
truth of your testimony and the seriousness of the proceedings.
1. At the completion of the deposition, do not chat with the
opponents or the opposing attorneys. Remember that the other
attorney is your legal "enemy". Do not let his friendly man-
ner cause you to drop your guard and become chatty. What you
say can be used against you later.
m. If the attorney representing your client begins to speak, stop
whatever answer you may be giving and allow him to make his
statement. If he makes any objection to the question being
asked of you, do not answer the question until he advises you
to go ahead and complete your answer. If he tells you not to
answer the question, respect that advice.
WRITTEN OPINIONS OF EXPERT WITNESSES
r The expert will be able to give a final opinion only after
the lawyer has completed discovery. In the meantime, the expert
can, however, suggest to the lawyer the areas of inquiry for dis-
covery and inspection. For example, if a hazardous machine fell
apart, causing an injury because a crucial bolt turned out to be
soft instead of tempered, the expert can help the lawyer find out
where it was bought, where to get the part drawing and process
specifications, and how to determine the extent of routine main-
tenance and inspection. In other words, the expert can serve as
an investigative consultant to the lawyer.
A preliminary evaluation report should invariably be prepared
and kept in the lawyer's file. It will document on-the-scene in-
Sspections and other observations made by the expert, and it will
refresh the expert's recollection when the expert is put on the
stand four years later. This type of report will be unlikely to
hurt the expert in cross-examination, since it will suggest possi-
ble theories subject to subsequent test and confirmation rather than
state calculations and conclusions. It should be marked preliminary
and should not be given to the client.
Authorities differ on the advisability of preparing a final
report. Some say that it is best, if procedurally possible, to put
the expert on the stand without having previously prepared a "final
report". This prevents the problem some have experienced if the
report is required to be made available to the opponent. A skillful
cross-examiner can disassemble it and make each individual statement,
taken out of context, look far-fetched. Also, if that same cross-
examiner questions the expert from his or her own report, the cross-
examiner doesn't have to remember what the expert said, nor does the
cross-examiner have to stumble over unfamiliar technical jargon.
Since the cross-examiner can read the unfamiliar term, the
cross-examiner can hurl it back at the expert with inflexions
indicating disbelief or disdain. On the other hand, a cross-exami-
ner not armed with the witnesses' report is relegated to dangerous
questions such as, "How did you come to that conclusion, professor?"
Fifteen minutes later the cross-examiner knows that he or she is in
trouble but can't remember much of the jargon which no doubt im-
pressed the jury, and which the cross-examiner is unable to effec-
On the other hand, particularly in administrative cases, it
may be essential to produce a final report. The report itself may
be introduced in evidence. The charts, graphs, and photos within
the report may help to explain the opinion, itself.
Generally, in Florida, when the expert's report is considered
"work product", it cannot be obtained in advance of trial by the
opponents. Two prominent exceptions exist. First, if the expert
uses the report to testify from, the opponent will be able to obtain
the report. Second, if the report has been done for or delivered
to a public agency (including its lawyers), it comes within the
Public Records Act. It can be obtained in advance of trial through
discovery. Wait v. F.P.L., 372 So. 2d, 420 (Fla. 1979); Tober v.
Sanchez, 417 So. 2d, 1053 (Fla. 3d DCA 1982), reh den. mem. 426 So.
2d 27; Hillsborough County Aviation Authority v. Azzarelli Construc-
tion Co., 436 So. 2d 153 (Fla. 2d DCA 1983); Miami Herald v. City of
N. Miami, 452 So. 2d, 572 (Fla. 3d DCA, 1984); Edelstein v. Donner,
450 So. 2d, 562 (Fla. 3d DCA, 1984).
Even in those cases where a final report is not produced, the
expert should at least provide his or her conclusions in the form
of terse statements for the lawyer's file. If a hypothetical question
is to be used by the lawyer, the conclusion must contain all of
S the ingredients of the hypothetical question which the lawyer
will need. When the lawyer asks the expert the hypothetical,
the expert is asked to assume the existence of each of the condi-
tions necessary to support his or her conclusion. Then the expert
is asked if he or she has an opinion based on those assumptions.
It is prudent to work up several variations of the hypothetical
question before trial, so that a successful objection to one form
of a question can be overcome by offering a variation which may have
less impact, but which will still enable the lawyer to accomplish
his or her purpose.
In the event of a written report, many experts provide a draft
for the attorney's perusal. This assures that the final report in-
cludes all the necessary attributes from the standpoint of law and
avoids any particularly sensitive words, terms or phrases relative
to the specific jurisdiction in which the case is to be tried. The
attorney can not expect to alter the technical opinion. The expert
must maintain independence of opinion, but, at the same time, remain
sensitive to the attorney's need to try the case.
COMMUNICATION TECHNIQUES FOR THE EXPERT WITNESS
The job of the expert witness is to be an effective advocate
for his or her professional opinion. Within the context of a law-
suit, however, the expert witness's mission is to persuade the
hearing officer (or the jury) to agree that the professional opinion
being advocated is the most reasonable and correct opinion in the
case. It follows that the gentle art of persuasion is a necessary
skill to be mastered by the expert witness.
Persuasion has been defined as the act of influencing the minds
of others by argument or reason, by appeal to both feeling and in-
tellect; it is the art of leading another person's will to a particular
choice. A number of social psychologists have studied the mental
processes that occur when a person is "persuaded" to adopt a particu-
lar position. Some have adopted the view that "persuasion" is the
process of attaching one person's recommendation to another person's
The listener always has a motive or need. That is, a predispo-
sition to move in a certain direction. For example...People want to
make decisions that make sense. People want to be fair. People be-
lieve the truth is admirable and that falsehoods are despicable.
People want to reconcile differences wherever possible.
Both the lawyer and the witness will be more effective if the
presentation is geared towards satisfying as many of these "motives"
in the mind of the listener. Demonstrate to the hearing officer (or
the jury) that the adoption of the proposed opinion as "fact" will
lead to the satisfaction of one or more of these hidden "needs".
Social psychologists have also identified a number of factors
which tend to make some presentations more "persuasive" than others.
For instance, the hearing officer will not be able to remember
everything that happens in the course of the trial. Psychological
studies indicate that most of the substantive content is lost from
memory during the case itself. What remains is essentially a col-
lection of impressions. Studies are now beginning to indicate that
these impressions are largely based upon the manner of presentation
rather than the actual content of the presentation. Some psycholo-
gists are now estimating that more than half of all communication
is non-verbal and that each witness is being evaluated not so much
by what is said, but by how it's being said.
What then are some things that the witness might do to improve
communication and enhance retention of the proffered opinion?
1. Be aware of the signals your "body language" is
sending to the hearing officer. Be conscious that your ap-
pearance influences your presentation. Your mastery of the
subject matter and of the facts (or lack of mastery) is
sensed at a subconscious/subliminal level.
2. Psychologists have learned that people remember things
better if they use more than one sense when the item is intro-
duced. Wherever possible, use demonstrative exhibits to involve
more than one "sense" of the hearing officer. Oddly, the sensory
impression which seems to be retained the longest is the sense
of smell. The sense of hearing, alone, often creates the least
memorable impression. To improve comprehension and retention, try
to give the hearing officer something that can be touched, something
that could be tasted, something that could be smelled, and at a
Cf minimum, something that can be seen.
3. Avoid "employment jargon". Both the lawyer and the expert
must avoid professional jargon which impairs comprehension.
It's always difficult, if not impossible, to remember something
C that doesn't make any sense to the listener. What meaning, if
any, is conveyed to the listener by the following attempt to dis-
tinguish the drawdown effects in confined aquifers from those
which occur in unconfined aquifers:
When water is pumped from a confined aquifer,
the pumpage induces hydraulic gradients toward
the well that creates drawdown in the potentio-
meteric surface. The water produced by the
well arises from two mechanisms: expansion of
the water in the aquifer under reduced fluid
pressures, and compaction of the aquifer under
increased effective stresses. There is no de-
watering of the geologic system. The flow sys-
tem in the aquifer during pumping involves only
horizontal gradients toward the well; there are
no vertical components of flow. When water is
pumped from an unconfined aquifer, on the other
hand, the hydraulic gradients that are induced
by the pumpage create a drawdown cone in the
water table itself and there are vertical com-
ponents of flow. The water produced by the
r well arises from the two mechanisms responsible
for confined delivery, plus the actual dewater-
ing of the unconfined aquifer. (Excerpted from
Groundwater, Freeze & Cherry, 1979, page 324.)
How much, if any, would be retained if this quote had been a
part of lengthy verbal testimony about a pump test?
4. A conversational style between the lawyer and the witness
is more effective than "acting out a script". Both the lawyer and
the witness need to respond to what they hear...and, of course,
they need to listed to what the other person is saying. What is.
said by "actors" when they are "acting out a script", is not as
persuasive as the information that's derived from the mutual inter-
change of ideas and information which occurs in a conversation.
5. Powerful speech using "impact words" will paint a better
(" verbal picture in the mind of the listener. Wherever possible, use
colorful, "image producing" language. Note the difference between
"blown apart" instead of "explode".
Also, beware of speech patterns that incorporate:
a. Intensifiers...i.e., very, definitely,
very definitely, surely;
b. Hedges that reduce the force of an assertion
by allowing for exceptions, i.e., like, sort
of, a little, and kind of;
c. Especially formal grammar;
d. Hesitation forms that fill what would other-
wise be silence, i.e., uh, eh, mmm, ya know;
e. Questioning forms that place a rising intona-
tion in a context that is intended to be declara-
All of the foregoing tend to be speech patterns of a "power-
less" speech style. Researchers have hypothesized that listeners
will discount the credibility of speakers who employ these low
power speech patterns. This powerless style indicates the speaker
lacks confidence in what he is saying. If the speaker lacks confi-
dence, why should the listener?
6. Be aware that responses can be induced by the form of the
question. Researchers have studied differences in responses to
questions that use the definite article (the) versus the indefinite
article (a). In certain experiments, subjects viewed a film of a
car accident and then answered questions about events which occurred
in the film. The results show that questions with an indefinite
article (i.e. "Did you see a broken headlight", as opposed to...
"Did you see the broken headlight?") lead to many more "I don't
Know" responses. Subjects who were asked questions with an indefinite
article were more than twice as likely to respond "I don't know".
Asked questions with a definite article, subjects tended to commit
A IWIt .o39
themselves to a "yes" or "no" response. It has been theorized
- that this difference results because the witness assumes that
when the speaker uses a definite article, the article actually
This can quickly lead to inaccuracies as a result of "trick
questions". For example, after seeing an accident film in which
there were no broken headlights at all, seven percent of the viewers
responded "yes" to the question, "Did you see a broken headlight?"
When the definite article was used, "Did you see the broken head-
light?", fifteen percent of the viewers gave false "yes" answers.
(Loftus & Zanni, Eyewitness Testimony: The Influence of the Word-
ing of a Question, 5 (1) Bulletin of the Psychonomic Society '86
The implications of this research for lawyers and witnesses,
alike, are clear. Different forms of questions may be consciously
used to elicit desired answers and to create desired effects on a
hearing officer or jury.
7. Lastly, the importance of "first impressions" must never
be discounted. A study in a series of "mock" trials in Chicago a
number of years ago determined that "eighty percent of jurors make
up their minds regarding liability after opening statement, and
never change their minds". (Colley, Friendly Persuasion: Gaining
Attention, Comprehension and Acceptance in Court, Trial, August
1981, et. 42).
Other studies have indicated that the opening statement gives
the jury a schematic framework into which they will "fit" the evi-
"1 dence and testimony introduced later in the trial. Just the promise
of testimony proving a defendant's innocence, has tended to make
juror's sympathetic to a defendant's case, even though such testimony
was never entered into evidence. In other words, the initial
statement made by defense counsel can influence the way jurors
process and retain information that's presented later on during
the course of the trial. This, of course, may influence the
verdict. Researchers suggest, therefore, that lawyers should not
be shy about promising jurors favorable evidence in the course of
their opening statement.
A s -Ui ____
THE PROBLEM OF EXPERT HEARSAY
As lawyers, legal scholars and students of "Perry Mason"
are aware, the law is uniform in its general distaste for
"hearsay". Traditionally, hearsay statements have been denied
admission in a court of law unless the statement has a unique
indicia of reliability justifying its use. However, while these
traditional principals have been gradually incorporated into our
modern Rules of Evidence, certain other exceptions to the general
rule against hearsay have also been adopted. Rule 703 of the
Federal Rules of Evidence provides that:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to him
at or before the hearing. If of a type reasonably
Relied upon by experts in the particular field in
forming opinions or inferences upon the subject,
the facts or data need not be admissable in evidence.
Virtually identical language has been incorporated into the
Florida Evidence Code. Section 90.704, Fla. Stat. (1983)
90.704 Basis of opinion testimony by experts.
The facts or data upon which an expert bases an
opinion or inference may be those perceived by,
or made known to, him at or before the trial. If
the facts or data are of a type reasonable relied
upon by experts in the subject to support the opinion
expressed, the facts or data need not be admissable
The first parts of these rules follow the Common Law fairly
closely. The usual way for an expert to become familiar with the
facts or data to be explained is to obtain them before or during
the trial. Recognizing this practice, under the common law the
usual technique was for the examiner to pose a hypothetical
question. In turn, this question was answered on the basis of
admissable evidence and the expert's accumulated experience.
This is in marked contrast to the plain meaning of the
second part of the rule. As the Advisory Committee Notes
observe, the drafters of this Rule intended to recognize current
practice, and in so doing streamlined the process of presenting
expert evidence. In this sense, the Committee succeeded. Where
once a succession of experts testified in turn as to their own
observations and findings, now a single well-read expert can
accomplish each of these tasks. However, by allowing an expert
these testimonial short-cuts, an expert can now rely upon the
previously inadmissable evidence and experience of others as
opposed to his own. Suffice it to say, this rule represents a
radical and controversial departure from prior legal practice.
However, of equal importance to what this rule says are issues
relating to what it doesn't say.
First, while the rule clearly allows the use of evidence,
if "reasonably relied upon" by other experts, it does not tell us
who decides what sort of evidence is reasonably reliable the
witness or the judge? In this context, it is generally accepted
that it is the job of the judge to determine whether the expert
sufficiently relied upon source materials. However, there is a
sharp difference of opinion as to the determination of what sort
of data is "reasonable". While some jurisdictions and
commentators have argued that the determination of "reasonable
reliance" is best left to the trial judge, other jurisdictions
have ruled that this is not a realistic view. Obviously,
requiring a judge to second guess an expert places quite a burden
upon the court especially when the data involved is unfamiliar.
In addition, it has been persuasively argued that this approach
makes a nullity of the streamlining approach suggested in the
second part of these rules 3 J. Weinstein & M. Berger Emerging
Problems under the Federal Rules of Evidence (1983).
Therefore, the more liberal and consequently more
accepted approach is that set forth in In re Japanese
Electronics Products, 723 F 2d 238 (3rd Cir. 1983). In rejecting
the restrictive approach, the Court of Appeals held that an
expert is entitled to base his opinion on all the relevant data
available to him, without judicial interference. In this
context, the expert is allowed to sift, weigh, and present all of
the available information, while the sole function of the trial
judge is to determine whether the data is of a "type" reasonably
In practice this approach has resulted in opinions being
grounded on everything from conversations with other experts to
materials supplied by the Plaintiff's attorney. See e.g. Mannino
v. International Manufacturing Co., 650 F 2d 846 (6th Cir. 1981);
American Universal Ins. Co. v. Falzone, 644 F 2d 65 (1st Cir.
1981). Accordingly, the jury must not only consider the
evidence, but also is forced to pass judgment upon the
reliability of unfamiliar data.
In addition to creating problems with respect to the
judicial division of labor, this approach also raises unanswered
issues concerning the scope of expert testimony. For example,
may an expert detail for the jury the inadmissable data on which
he based his opinion? The rules seem to allow this description;
Rule 705 explicitly provides an expert, in giving his opinion,
may detail the reasons for this opinion without prior disclosure.
This practice is also allowed in Florida. Fla. Stat. Section
90.705 (1983) provides:
90.705 Disclosure of facts or data underlying
Unless otherwise required by the court, an expert
may testify in terms of opinion or inferences to
give his reasons without prior disclosure of the
underlying facts or data. On cross-examination,
he shall be required to specify the facts or data.
However, none of the rules tells us-whether or not a motion
in limine is available to preclude the expert from describing
otherwise inadmissable evidence. Therefore, the only certain way
to totally exclude this type of evidence is to challenge it as
prejudicial, confusing or as a waste of time, Rule 403, Federal
Rules of Evidence; Fla. Stat. Section 90.403 (1983). However,
the problem of relying too much on this rule is that its
application hinges totally on the trial judge's discretion. As
such, the practitioner should be prepared to combat inadmissable
evidence not only before, but after its introduction.
Because of these inherent difficulties, cross-examination
remains the most reliable method of opposing expert hearsay.
This in turn mandates a thorough pre-trial sequence of discovery
in order to determine exactly what the expert's basis of opinion
will be. This type of discovery is expressly allowed under both
the Federal, and Florida Rules. See Rule 705, Federal Rules of
Evidence; Fla. Stat. 90.705 (2) (1983). By discerning the
opposing point of view early, consultation can then be made with
other experts to determine the weaknesses inherent in an expert
witness's "plan of attack". In addition, this sort of pre-trial
preparation will prepare the practitioner for pre-trial
conferences, as well as for preparing his own rebuttal evidence.
See Rule 1.200, Florida Rules of Civil Procedure (1984 Supp.).
In summary, while liberalized Rules of Evidence have
streamlined the process of offering expert testimony, they have
also created the possibility for widespread abuse. Accordingly,
both experts and lawyers should strive to use expert testimony
for its intended purposes, and not as a vehicle for introducing
otherwise inadmissable evidence. Only through pooling the
respective talents of both lawyers and experts can these
practices be prevented, and the intended streamlining process