8127/frame/fm

e.
Agreement by Default
One tactic of creative attorneys is to repeat your last statement with their
own spin on it as a prelude to asking another question. If you allow the
statement to stand, it appears as though you agree with it. If you try to correct
the misstatement, you may seem argumentative. Without the help of an alert
attorney and a sympathetic judge, there is, unfortunately, little you can do
about this type of tactic.
f.
Demeanor of the Expert
The demeanor of the expert plays a large role in the perception of his testi-
mony by the judge and jury. In addition to maintaining professional (read
that conservative with no apology) attire, the expert should be polite and
accord the proper respect to the judge, attorneys on both sides of the bench,
and also to the jury. Remember that, although experts are being paid for
their services (either by a salary or fee), jury members are more or less
volunteering their time to provide a civil service. Because they will make the
final decision in most cases that go to trial, you want them at least receptive
enough to consider your testimony seriously.
Sarcasm and intentional obfuscation may be the fastest way to get your
testimony either dismissed or ignored. In a DNA admissibility hearing, the
expert, in a reaction to having been hammered for many days on the stand,
testified that “PCR can be done in a barn.” Out of several weeks of testimony,
this was the phrase that the judge remembered when it came time to write
his opinion. The credibility of the expert was seriously undermined and his
thoughtless remarks were a large (if unfounded) contributing factor to the
judge’s final decision not to admit evidence analyzed by the new methodology.
In another example of condescending testimony during an admissibility
hearing the witness was asked:
Q: In your laboratory did you do any studies to compare PGM and
DNA sensitivities in terms of —
A. Again, that’s a different — you compare different thing. You say I
compare your intelligence with my intelligence. That’s not a legiti-
mate comparison [sic].