Stephen Gustitus at the Defense Perspective posts about a study from UC Berkeley about how the credibility of the over-confident witness is easily destroyed when he makes a mistake.  Since the defense usually has no witnesses to events willing to step forward or testify, the most likely witnesses are the defendant and the defense expert.

Stephen’s post got me thinking about defense experts.  Just the word “expert” makes me wince.  They scare me.  Mostly, they scare me because they’re mine and when they take the stand, the defense is saddled with whatever they say and whoever they are.  It isn’t always pretty.  I’m always more comfortable ripping apart someone else’s witness than watching someone else rip apart mine.

My first problem with experts is that they want to sell me, the defense lawyer hiring their services, on how wonderful they are as an expert in order to justify the ridiculous fees they charge for testifying.  By ridiculous, I mean many times what they would charge for the same amount of time spent “doing” whatever it is they will be testifying about.  They love to tell you about how their brilliance won this case and that, and how the prosecutor wilted in the face of their devastating testimony. 

As soon as I hear this, I start to shake.  This expert wants to be the shining knight who rides in to save the day.  He knows everything.  More than anyone (incuding me), he’s going to get on that stand and there’s no stopping what comes flying out of his mouth.  The problem of witness cockiness isn’t an issue with this kind of person; it’s an inevitability. 

Sometimes, the issues in a case are clear enough that you know what you will need from an expert far in advance.  This allows you time to find exactly the right expert for your case, and to send the overly-cocky expert packing.  In a perfect world, we have plenty of time to find, interview and prep our experts, and sufficient funding to retain exactly the right expert for our case.  Not only will our expert possess the right credentials, and have the best substantive knowledge of the issue, but he will bring gravitas, sincerity and humility to the witness stand.  When this happens, it’s a thing of beauty.

But we are frequently faced with unknown testimony at trial, where we don’t know that the prosecution will bring in an expert or the particular thrust of the prosecution’s case on an area where expert testimony by the defendant will be proper.  This doesn’t happen this way in all jurisdictions.  It does in New York, where our discovery rules are useless and we are frequently sand-bagged at trial.  In New York, you just learn to live with it because you don’t have a choice.

When this happens, you are left to find an expert in the middle of trial, often overnight for testimony the next day.  This complicates matters.  At this point, you struggle to find anyone who you can get into the courtroom the next day, has the basic qualifications to be allowed to testify as an expert and will provide the testimony you need. 

You prep the expert whenever you can find the time, often in the evening or early morning.  This is when you learn about how the cockiness is going to come out, how they are going to take the stand and pontificate about how they know everything.  Your immediate reaction is to send them packing.  This is not a person you want testifying for your side.

They start making overbroad and hyperbolic assertions, which makes them easy targets on cross.  They don’t answer your questions, but instruct you on matters that they think are important.  They don’t take direction well.  Sometimes, they don’t take direction at all.  And they can’t see that they don’t come off as brilliant and irrefutable.  They come off as obnoxious blowhards.

In preparing experts under these circumstances, the criminal defense lawyer walks a fine line.  If we try to force them to tone it down, we risk their being insulted that we don’t appreciate their brilliance and their walking off the job, leaving us without a witness.  On the other hand, if we are not sufficiently clear and forceful about the problems with their substantive testimony or their demeanor, we risk the cocky expert who can potentially sink the defense.  Putting the blowhard on the stand as your witness reflects on the entire defense, and the jury’s dislike of your expert translates to the jury’s dislike of the lawyer, and ultimately, the defendant.

If you’re hoping that I have a solution for the cocky expert, I’m about to disappoint you.  When I find myself in the position of having to find and prep a last minute expert, I just pray that he doesn’t screw it up.  My defendant may have no idea that the demeanor of an expert counts, and they tend to like the overbearing expert because his confidence in himself instills confidence in the defendant.  But once you put the expert on the stand, there’s little you can do to control him.  Just pray that he paid some attention to you, and that he will demonstrate a little humility on direct before it’s rammed down his throat on cross.

Update:  A snippet from a post by Bob Ambrogi at  Legal Blog Watch that just fits into this post so well:

Notably, Thomas responds to critics who said she should have used an expert witness at trial. She planned to, she says, but then could not afford the expert’s fees. She explains:

“I did have an expert. This expert did inspect my computer and was going to testify for me at trial. That was originally the plan, until I couldn’t come up with the money for my expert during the trial. Another thing most people don’t know is the defendant is responsible for paying expert witnesses their hourly rate during the trial and providing for their food and board while at the trial. My attorney was able to secure that expert witness at a very reasonable rate, but I wasn’t able to afford this rate during the entire trial.”