Practice Development for Expert Witnesses
Beryl Vaughan, Consultant
Nationwide

Email go@forensicexpertpro.com or Call (415) 302-9589

Demeanor: What Are You Communicating to Attorneys and Jurors?

By Beryl Vaughan

Marisa Tomei testifies in the film My Cousin Vinny.

“Demeanor” is a subtle word. I’d like to talk about applying something subtle to  physical and articulated communication.

The Expert’s presentation includes personality, demeanor, and style of expression.  It’s conveyed through your dress, gestures, speech style, and even the personality of your website and business behavior.

Getting this right can be a positive hallmark of your practice.

How do I remember what I was going to say on the stand?  I do a lot of “ummm” and “please ask the question again.” HELP.
    • Practice alone
    • Record yourself — have a Zoom selfie. Watch it later and take notes.
    • Practice in front of a trusted and honest friend–invite criticism.
    • Practice again in a pre-trial conference with the attorney.

You’ll need to practice less over time.

What if opposing counsel gets aggressive in cross-examination?
  • Look at that constructive criticism above. Do you have a “tell” that you are nervous or uncertain? Work on removing or, if you must, suppressing it.
  • Make a script ahead of time that answers the most likely questions.
  • Script the questions that provoked your “tell.”
  • List every question you’d hate to answer and the most deflating answers.
  • Give short, truthful and defensible answers, delivered with appropriate inflection.

“Doctor, I see you attended medical school in _____. Are you even qualified to practice medicine in the  United States?”

Answer: “I hold 2 Board-Certifications in ______ and am licensed to practice medicine in [State where you are licensed].  (STOP THERE. Just be quiet.)

On redirect, the attorney who retained you is given the opportunity to disable any dangling implications.

Redirect:

Doctor, please describe what is necessary to achieve Board-Certification in X? Doctor, please also describe what is necessary to achieve Board-Certification in Y?

Answer: X years of study, X years of residency, a one year fellowship obtained through a competitive selection process, passing the Y examination.

The higher the stakes, the more opposing counsel will study your buttons.

Big Buttons You Can’t Control? Consider Cognitive Behavioral Therapy (CBT).

Everyone has something that sets them off. Everyone. In testimony you need to compartmentalize that trigger. If you lose your temper or become sarcastic on the stand, you erase the benefit of your opinions, even if they are well thought-out, objective and bullet-proof.

As a treater, you know better than anyone how relationships play out if someone is an apologist, passive-aggressive, narcissistic, or inclined to commit boundary violations (Too Much Information is real.)

Your professional interactions are no different.

What is the right body language?

Arms uncrossed, legs closed, sit straight. Not ramrod straight, not tightly closed.

Tension suggests something is being hidden.

Relax your muscles. You don’t have anything to hide and aren’t tense, you convey, because there’s nothing to be tense about.

Sit up straight, don’t slump. Sitting up straight says you are not afraid.  I mention posture more than once in this article. It serves different purposes. Let’s look at slumping, the opposite of good posture.

Slumping can suggest a

  • Defensive posture that says “I want to hide myself from you by curling inward,” or
  • “I have something to hide”–like a different opinion than the one I am reporting in testimony. 
  • “I don’t take this seriously.”

Constructive Criticism from Attorneys

Attorney feedback, by word or implication, is essential information. Pursue it! Ask how your testimony went. Ask about their observations. If you have an informal relationship, ask how you can improve.

What do others report you convey and why? Parsing the Feedback 

  • Humorous? Appropriate and successful (jury members genuinely laugh)? Inappropriate and off-putting?
  • Trustworthy?
  • Likeable?*
  • Charismatic?
  • Approachable?
  • Warm?
  • Repulsive?
  • Patronizing?  The worst offender because the expert witness is already in the mix because they’re ‘more knowledgeable’ than others.
*”The likeability of the expert witnesses was found to be significantly related to the jurors’ perception of their trustworthiness, but not to their displays of confidence or knowledge or to the mock jurors’ sentencing decisions.” Brodsky SL, Neal TM, Cramer RJ, Ziemke MH. Credibility in the courtroom: how likeable should an expert witness be?. J Am Acad Psychiatry Law. 2009;37(4):525-532.

Take your measure – institute changes – reassess your performance. Grow. Get Better.

How should I dress in Court?  Is Wardrobe Relevant? Yes.

A “guru” in the field of forensic psychiatry gives this advice to the Expert Witness (‘m not identifying the doctor because he has not published on this topic, only shares considerable experience):

For both men and women:

  • Suit
  • Pressed
  • Good fit

Women:

Always a skirt

Low heels, closed-toe shoes

Never sexy

Men

Tie

No comment about footwear or “sexy.” 

Gender Gap: “Clothes Make the Man” and How About Women?

 

About Skirts and Heels

In a lively conference seminar, this “guru” was clearly giving advice everyone had already heard from him. Friends and colleagues knew what he was going to say and there were more than a few (fond) groans. 

Women spoke up.  Skirts and heels were outdated, said many. Here’s my take.

Is it true or sexist? 

If juries and judges care, then I’d say it’s sexism but that’s a much more complicated conversation.

There’s no peer-reviewed research about jury response to an Expert Witness’ clothing.

I found so much speculation and  observation-based opinion that I cannot report it with authority.  So here’s my own speculation.

A skirt and flats is casual dress. If you’re going to wear a skirt, wear heels to visually state you are present in your capacity as a professional. Dress like it’s a job interview because you know what?

Testimony is a kind of job interview: you are explaining why you speak with authority, you are reliable and knowledgeable. 

If you’re wearing a pant suit, adding heels is your call. You might consider your height. If you think there is a reason to appear taller, wear heels.  Think you’re too tall? Then go flat. I am not sure heels matter.

The Expert sits about 12′ from the Jury. To enter the witness box they are several feet nearer. Visually, as a person approaches they become larger. 

Once you’re seated, who can tell? Posture is more important than heels.

Do skirts or pantsuits matter for a female Expert Witness? 

Comment below or send me an email and I’ll update the article with your comments.

 

 

 

 

 

 

 

 

 

 

 

Marisa Tomei testifies in the film My Cousin Vinny.

Digital Dress
What Does Your Website Say About You: Demeanor in Text and Images

A website is a multi-media job interview.

  • graphics and photographs are powerful communicators, for good or ill.  But they’re necessary to lighten the load of non-stop text.
  • The tenor of writing on your site gives attorneys a test run of what they can expect in your reports and even testimony.  It’s worth your effort to get that right. I copy-edit content for my clients and I have yet to see writing that’s perfect straight out of the box.
  • Audio-visual content is an even more influential message about what your testimony might look like. When that’s a strength, communicate it up front.
Demeanor applies to both you and your business.

Getting this right is so important that I’ve addressed it in its own article Building a Reputation for Fair-Dealing, Integrity and Goodwill.

In brief, thoroughness, as a trait in forensic practice, includes being well-organized, transparent, easy to understand in how you track records, bill your time, convey the terms of your retention and fees.

Let’s together take a look at your strengths, identify room for improvement with a plan for solutions, and transmit what’s best about you, on the web and in person.

0 Comments

I ‘ve always loved The Little Prince* I recall the drawing of a boa constrictor that’s eaten an elephant. The Little Prince says “I showed my masterpiece to the grown-ups, and asked them whether the drawing frightened them. But they answered: “Frighten? Why should anyone be frightened by a hat?” What do people see in you?

The Little Prince

* Saint-Exupéry, A. D., & Woods, K. (2009). The little prince. London: Egmont.

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