Practice Development for Medical Expert Witnesses
Beryl Vaughan, Consultant
Nationwide
Email go@forensicexpertpro.com or Call (415) 302-9589
Testifying Demeanor: What Are You Communicating to Attorneys and Jurors?
By Beryl Vaughan
Marisa Tomei testifies in the film My Cousin Vinny.
Testifying is scary at first.
There are almost no “naturals.” Only those who practice.
Guess whose sparkling testimony benefited from a script and rehearsals before testifying? The automotive Expert Witness in My Cousin Vinny.
People love the expert testimony from sassy Marisa Tomei because of her, confidence, moxie, and delivery of her knowledge of all things automotive. In the film, she faces the patronizing attitude of the DA grilling her.
Fiction vs. Fact
It would have been daunting for most people. But it didn’t happen in real life. Marisa Tomei is a skilled actress who practiced being fictional “expert witness,” Mona Lisa Vito, to make her delivery seem effortless. She received an Academy Award.
Unless you have an Academy Award on your shelf, don’t compare yourself to others. You are not Marisa Tomei. As an expert witness, even Marisa Tomei isn’t Marisa Tomei.
Take control over your testimony “demeanor” and perfect the whole package: visual, physical, and articulated communication.
A trial tells a story. All who speak in court, from the perpetrator to the judge, become part of the narrative presented to juries.
Who Are You?
Presentation on the stand can reflect your “native” personality.
If your personality isn’t the “confident, erudite, brilliantly insightful, and naturally charismatic leader,” then let’s figure out a solution for someone more human.
What is your Personality?
Is it consistent with your presentation? For example, sometimes shy people cover their insecurity with unexpected behavior–a loud voice, pushy countenance. Others speak softly and are apologetic.
If your personality is counterproductive, consider Cognitive Behavioral Therapy, or a coach (paid, or family and friends).
Posturing (not posture) is a common mistake. It is behavior that is “intended to impress or mislead” (Oxford.) Uncertainty or fear can result in the former (impress)–causing a jury to assume the latter (mislead.)
Aggressive? How do people know that? “Backing off” might mean voice modulation or pre-testimony relaxation techniques like deep breathing.
Meek? Lean in and speak up.
Arrogant vs. Self Confident.
Confusing self-confidence with arrogance is a classic expert witness problem. A know-it-all turns juries off. Might you be narcissistic? [1].
If you’re in therapy, talk over your personality presentation style with your therapist. Insight is helpful to change behavior.
Behavior and Mental Health
Mental health conditions impact behavior. For example, fear of public speaking-a serious concern in an Expert Witness.
A person diagnosed as Bipolar may speak too fast or loudly for the jury to track.
Alternatively, someone depressed may shy away from eye contact, speak in a quiet or monotone voice.
OCD-driven gestures or tics can alter how you are perceived. For example, repetitive gestures, body movements, or making sounds that are out of place.
Medical Conditions that Manifest On the Stand
Your health can change your physical delivery.
- Medication side effects (e.g., prednisone and collateral aggression or sedating medications)
- Symptoms such as excessive sweating, difficulty breathing, or frequent coughing could non-verbally communicate discomfort with your opinions. If you are sweating because of a medication side-effect, the jury may think you are nervous or lying. Frequent coughing: they can’t hear you; they can’t follow you.
- Doctor Heal Thyself. Treat your own symptoms before you take the stand. Diabetic? Eat. Forgetful about morning medication? Post your pre-court checklist on the door and include your meds. Asthma? Use your inhaler if appropriate. (I have sat in meetings coughing uncontrollably. It was asthma, not COVID, but it interrupted the point I was making–it had real consequences, however subtle.)
Practice in Safe Company
Practice testimony in front of more than one friend. Filter their need to reassure you to find real tweaks to improve your skill. If this is not comfortable, consider the Zoom selfie.
Marisa Tomei testifies in the film My Cousin Vinny.
Vinny’s girlfriend Mona Lisa Vito, became an unplanned Expert Witness. She almost lost the jury with her sexy clothing, ‘New Yawk’ accent (in the deep south,) losing her temper and a defensive attitude. She regained it when her demeanor turned warm, and she delivered a concise, confident delivery of facts only an Expert can know. This ultimately made the case.
Verbal Style
- Speak loudly enough. Testimony has to be heard by 2 rows of jurors about 20′ away. Your pitch must be loud enough to be heard by the jury, but not more loudly than the attorney who has retained you. Watch out for “shrill” delivery (high pitched).
- Don’t take your cue from opposing counsel. It’s an old trick: ask the Expert a question in a hushed tone. It forces you to lean forward and ask for the question to be repeated. It can make you look inattentive, even incompetent.
- Measured speech. Speak more slowly than you do when you’re nervous.[2]
- Get to the point. Answer the question you were asked.
- Tip: Test it with a Zoom recording–set up a meeting with yourself, record it, practice a paragraph of your testimony, rinse and repeat. Nervous people tend to talk faster. Confident people have a slower style of speech. These are fixable. Ask others to review your recording and get feedback.
Physical Style
How are you dressed? Do you use gestures? What is your body language?[3]
Body Language
- Arms uncrossed.
- Legs closed but not tightly (not crossed). Tension in your legs will change your posture all the way up your body.
- Sit straight. Not ramrod straight, but respectfully upright.
- Relax your muscles. Stay loose.
Don’t slump, listen to your mother.
Sitting up straight says you are not afraid.
Slumping:
- Head down, back curved and body closed inward, leaning your weight on an arm, these can communicate you are either indifferent or defensive. They say “I want to hide myself from you,” or “I have something to hide.”
- “I have something to hide” could mean a different opinion than the one you are reporting in testimony. Or worse, it could be you are hiding facts the jury hasn’t heard.
SELFIE
I recorded myself on Zoom. Here’s what I learned:
My voice cracks. Just like a teenage boy. I’m not a teenage boy.
Solutions. Watching a video about voice delivery. and using techniques like sitting straight to free my vocal chords. (Thanks to voice actor Carin Gilfry.)
Getting a better mic; testing it with the techniques from Ms. Gilfry.
I talk faster and louder, and a touch manic, when I’m more enthusiastic. I’m practicing modulation.
I feel I look attractive in my favorite black turtleneck but when I’m on a screen, against a black chair and dark wall..one sees a “floating head” effect. I tested different color clothes until I found a better result.
I use “ummm” too often. Practicing helps (thanks Marisa.) So might joining Toastmasters. Sound dumb? Reconsider how much income is on the line, if you get it wrong vs. right.
When something interests me, I say it over and over. I only need to say it once (or twice). Mindfulness is my solution, and “script notes” to keep me on the conceptual path.
I’ll keep you posted on my own journey to a better presentation.
Respect the jury.
- Opposing counsel’s “win” is when you communicate a disrespect for the attorney, trial or, especially, the jury. Respect the jury–they are your “audience” and will expect you to talk to them, not down to them.
- Don’t rise to opposing counsel’s bait. It is tempting to direct your entire style of testifying to opposing counsel. They are trying to make you mad at them. The jury will always wonder why–perhaps you are angry because you have something to hide.
- Human Nature to Please. Pleasing opposing counsel isn’t your job. But it is natural to desire to please opposing counsel–as a defense against confrontation. One tactic they have is to invite the expert into a colloquial or friendly relationship–using eye contact, tone of voice and smiling. They are not your snake charmer. Save your smiling for when you look at the jury.
- Opposing counsel’s opinion of you as a person is irrelevant!
- Opposing counsel’s “win” is rattling you into a defensive posture and defensive delivery. Raising your voice in anger and/or defensive choice of words (“I didn’t mean that” or “You’re wrong”.)
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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 suppressing it. In time, it will disappear.
- 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. Remember, there is room to clarify anything on redirect that feels damning.
You are asked:
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“Doctor, I see you attended medical school in _____. Are you even qualified to practice medicine in the United States?”
Answer:
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“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 questions:
“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?”
Your Answer:
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“X years of study, X years of residency, a one year fellowship from _____ (school of Fellowship) obtained through a competitive selection process, and passing the American Board of Psychiatry and Neurology examination. I was awarded Board-Certification in ____ (year) and have been a practicing physician for ___ years”
Many attorneys, by the way, don’t realize that you have been a physician for far longer than your Board-Certification, thus you may have 10 years under your belt as a physician yet just finished your Boards in a second subspecialty last year.
- The higher the stakes, the more opposing counsel will study your buttons.If you have big “buttons” you can’t control, see above about Cognitive Behavioral Therapy (CBT.) Seriously.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.If you are a mental health treater, you probably 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 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.
*FYI, sorry UK readers; I use the US spelling..
Take your measure – institute changes – reassess your performance. Grow. Get Better.
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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.) His advice is decades old. I revise his suggestions below:
For both men and women:
- Suit, well-fitted and tailored if needed.
- Pressed
- Good fit
Women:
Always a skirt (his controversial “rule”)
Low heels, closed-toe shoes
Never sexy–no cleavage, clingy fabrics, short skirts.
Men
Tie
A suit that’s been to the tailor. Pant length and jacket cuffs should fit your height. Stay with dark fabrics, black or navy.He makes no comment about male footwear or “sexy.”
Gender Gap: If “Clothes Make the Man,” How About Women?
I wish the image above said “SexISM Offender.”
About Skirts and Heels
In a lively conference seminar, attended by more than a hundred Expert Witnesses, 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.
I have found no peer-reviewed research about jury response to an Expert Witness’ clothing; research this.
I found so much speculation, and observation-based opinion, that I cannot report it with authority. Here’s my speculation.
Footwear (I’m not kidding.) A skirt worn with flats is casual dress. If you’re going to wear a skirt, wear low heels. The heel is a business standard; the “low” is so you are comfortable.
If you wouldn’t wear 5″ heels on hospital rounds or a job interview, you have your answer.
Low heels visually state you are not there to entice anyone.
A pantsuit, however, gives you more footwear latitude because your shoes aren’t taking juror attention away from your face. Remember, your face is where you communicate what is most compelling about your testimony.
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 low heels. Think you’re too tall and always wear flats? Then go flat. “Think you’re too…” is relevant. Women have a complicated relationship with their body image. It can be distorted (I”m too tall is a self-analysis. “Reality testing” is a great tool. Ask others how they perceive you.) A tall woman can be formidable and convey authority, unless they hunch; then you have a problem.
Do skirts or pantsuits matter for a female Expert Witness?
Leave a comment below or send me an email and I’ll update the article with your comments
Male or Female Experts consider the view from the jury’s perspective. The Expert sits about 20′ from the back row juror.
The approach. If the witness box is between the judge and jury, your climb into the witness box is several feet nearer. Visually, as a person approaches they become larger. Dress details are a little more important than if the witness box is further from the jury (jury is left of Judge, Witness is to the right.)
Digital Dress
What Does Your Website Say About You: Demeanor in Text and Images
No, this image does not belong on your website!
In case you’re confused: the above image does NOT belong on your professional website.
A website is a multi-media version of the job interview. Jurors might look you up online (even though they voir dire warns against it.)
- graphics and photographs are powerful communicators, for good or ill. But they’re necessary to lighten the load of non-stop text. That’s why I included the image above. Weren’t you getting tired of words? Readers like you may welcome a respite but if it is distasteful or out of place, you have a problem.
- The tenor of writing on your site gives attorneys a test run of what they can expect in your reports and even testimony. I copy-edit content for my clients and rarely find 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.
[1] Narcisisstic Personality Disorder includes “a pattern of grandiosity, need for admiration, and lack of empathy..” Mitra P, Fluyau D. Narcissistic Personality Disorder. [Updated 2021 May 18]. In: StatPearls [Internet]. Treasure Island (FL): StatPearls Publishing; 2021 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK556001/ referencing The Diagnostic and Statistical Manual of Mental Disorders, 5th Ed. American Psychiatric Association, DSM-5 Task Force. (2013). Diagnostic and statistical manual of mental disorders: DSM-5™ (5th ed.). Arlington, VA, US: American Psychiatric Publishing, Inc.
[2] Do You Talk Too Fast? How to Slow Down. Ni, Psychology Today, Nov. 2019.
[3] Of interest: How Body Language Can Impact Witness Credibility, Cook and Pitera, Litigation Insights. 2018
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?
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