These tips are for Dog Behaviourists who may act as Dog Expert Witnesses in legal cases.
Protect your expert witness credibility. During your initial conference with the Solicitor, state that you will form an independent opinion based upon the facts, and that there is a possibility that your opinion will not support his client’s case. If the Solicitor is looking for support who will make the facts fit the desired conclusion, you are better off declining the case and preserving your credibility.
Try to maintain balance by representing both plaintiffs and defendants. If you always represent the same side, you risk looking like prejudiced even if you are very careful about the clients and cases you take. Of course legal aid may tip your case balance an example being the amount of prosecutions appertaining to the Dangerous dogs act 1991.
Maintain a list of the articles/ books/films you have published, and the cases where you have testified. Keep copies of your publications and prior evidence for your clients to review. A Solicitor will need that information in order to prepare for litigation where you may be challenged with your own writings and testimony. If you no longer hold some of the positions you have taken in prior litigation or in past writings, let your client know so that he is not surprised when opposing counsel attempts to impeach you for “contradicting yourself.”
If you are inexperienced as an expert witness, you should know the following:
- Know the legal issues. Speak with your client about the legal issues, and get comfortable with the legal terminology for your case.
- Only one person may speak at a time. Everything you say at a hearing is being transcribed. The court reporter cannot make a good record when people interrupt each other or talk at the same time.
- Only answer the question that was asked. Ordinarily, after you have answered the specific question that you were asked, you will not want to volunteer any additional information. Even if opposing counsel sits silently and seems to expect you to say more, don’t fall into that trap. If opposing counsel wants more information, he will ask a follow-up question. Get used to silence even if it makes you uncomfortable — it is your job to answer questions, not to fill silence.
- Think before you answer questions. Whether on direct examination or cross-examination, think before you speak. It is almost always better for there to be a short pause before you answer a question than for you to give a bad answer.
- You will be asked “hypothetical questions,” which may be unfair. Opposing counsel may ask you to assume facts, and explain how your opinion would change if those facts were true. Do not assume that the facts are true — the Solicitor may be trying to confuse you, or make you doubt your findings.
- It is fine to answer, “I don’t know.” to a question.
- Do not overstate your client’s position. An overstatement can devastate your credibility.
- Pay close attention to questions. If you don’t understand a question, ask for it to be repeated. You cannot help your client by answering a question that you do not understand.
- You were not employed to impress people. You were employed to persuade people. It may be possible to do both, but if you must choose between looking impressive and being likeable, it is better to be liked. You should think of yourself as an personable teacher, not as the ultimate arbiter of fact.
- Be Careful With “Terms of Art”. Most professions use common words to mean something other than what a layperson would understand the word to be. Make sure you understand the legal terms of art the lawyers and judge in your case may use, and make sure that the legal team understands the terms of art that you may be using as you explain your case. Be alert for possible confusion, and be prepared to explain any terms of art that you use during evidence rather than creating a possible ambiguity.
- Try to make your evidence understandable, and avoid technical jargon, but do not be imprecise. If you are testifying about “a breed specific trait”, you will not ordinarily want to refer to the trait as “ general dog behaviour” without first making a clear record of the differences between “a breed specific trait”and “general dog behaviour” and explaining that you are using the wrong term to make your evidence more understandable. Otherwise, you can expect opposing counsel to use your evidence against you, to argue that you don’t know the difference between “glue” and an “adhesive.”
- Don’t follow opposing counsel’s lead, if he is leading you astray. Staying with the “adhesive failure” example, opposing counsel may repeatedly refer to the adhesive as “glue,” in the hope that you will follow his lead. The short-term goal is to trick you into believing he is unsophisticated about the scientific issues, and the long-term goal is to be able to argue that you don’t know the difference between “glue” and an “adhesive.” Make a record, early in the questioning, that the substance at issue was an “adhesive,” and that you are assuming that the references to “glue” are in fact references to the adhesive.
- Listen for “misleading” questions. If opposing counsel asks you a question that sounds like “legalese,” it may be an effort to trick you into making a damaging concession. If you know the legal issues and standards governing the litigation, you should be able to avoid this type of trap.
- When it is possible to be definite, be definite. If you always start an answer with “I believe” or “In my opinion,” the effect may be to suggest that your opinions are imprecise and that it is perfectly reasonable for people to disagree with you.
- Be careful about accepting the opponent’s facts. During a hearing, opposing counsel is likely to ask you to agree with certain key facts. You should discuss which facts are “certain” with your client before the hearing, so that neither of you are surprised. Make sure you understand which facts are in dispute, so you don’t accidentally concede a point which damages your client’s case.
Tips by A. Larsoon and amended by L. Cox. Dog law Expert Witness
Colin Tennant – Dog Expert Witness Service