About the Author
Allan Schwartz is an attorney qualified to opine on residential real estate broker standard of care, failed real estate transactions and real estate acquisition due diligence.
It didn’t take me decades of legal practice to learn that it takes more than subject mastery to make a persuasive expert witness. To be highly effective an expert must be an excellent communicator. Because science tells us much communication is non-verbal, the expert who recites conclusions and methodology paying no heed to his body language trims his own sails. This is why I am driven to share some basic advice about non-verbal communications.
When testifying the expert should command the judge and jury’s complete attention. This can be a real challenge, especially if by the time an expert is called to the stand the jury has been sitting for days on end. A good expert must therefore engage the triers of fact – from the get-go.
Jurors listen with their eyes and ears. Even the juror who’s never heard of body language unconsciously responds to it. They’re quickly deciding whether to like, understand and believe a witness. While an expert should never appear manipulative; posture, movement, orientation to the jury box, eye contact, gesticulations, and body posture all need to be monitored and controlled. The finest of movements in facial expressions may be innately understood. The frozen face is boring while the animated one commands attention.
Jurors also respond with body language. The expert must observe the jury, attuned to their reciprocal non-verbal communications and then adapt the message accordingly. Jurors who look dazed, skeptical or confounded cannot be ignored. The expert needs to adjust by restating the message in different ways until the desired reaction is obtained.
The sounds we utter to convey words and concepts could be considered a sort of body language too. Just as police don’t whisper commands and love ballads aren’t yelled in fright, the expert’s nuances of opinion and insight should be delivered using appropriate pacing, crescendos and phrasing. Be dynamic. Resonance is essential: one should avoid sounding nasal. Naturally, driving one’s voice from the belly, opening the mouth, and not putting one’s hand in the way are the types of things that will all increase the likelihood of a successful delivery.
It is folly to believe that nothing persuades but words. Emotions accentuate speech and empower one’s message. The last thing an expert should do is leave the jurors feeling bored. An engaging presentation is essential. But if a witness isn’t confident, and doesn’t emote about his knowledge and opinion, why should anybody else care about it? Show some passion. A little salt enhances flavor, too much ruins the dish.
Summing up, the best expert witnesses are like great teachers. They command attention with the power of their message and their delivery. They show passion for their subject matter without seeming aloof and didactic. They are sincere and confident. They inspire their students, leaving them wanting more. They never, never underestimate the value of using non-verbal communication to help form a lasting impression.