The business divorce case should have been a slam dunk. The determination of the economic value of plaintiff’s interest was clear. There was no question of what a willing buyer would pay. At trial, his industry expert had sterling credentials, decades of experience inside of the industry, and deep knowledge of the financial marketplace. He provided an air-tight analysis and report. A multi-million-dollar finding for the plaintiff was a given.
Then, during fierce cross-examination by defense counsel, the expert imploded. He stumbled over simple answers. He looked confused. His shoulders slumped. His voice got quieter. Every piece of his report was rock-solid; every word of his testimony was true. But, suddenly, the expert’s behavior made his once-credible testimony suspect in the minds of the triers of fact. The cost: millions of dollars.
It happens more than you think. Smart experts who know what to say sometimes falter in how they say it. How can you ensure this doesn’t happen to you as an expert? In a recent article published in BVR’s Business Valuation Update, expert Deborah Johnson, MC covers the secrets to expert testimony that engage and persuade the court including what jurors want, a polished preparation, hard skills vs. soft skills, and more. Get an insider’s look at what you need to do to engage and persuade a judge or jurors so that you become the kind of expert top litigators clamor for.
Hard skills vs. soft skills.
You may have stunning credentials, specialized knowledge and experience, be able to prepare pristine analyses, and speak astutely about your analysis. However, like the case illustrated above, that alone will not get you the results you need when it comes to engaging and persuading the court. Your hard skills—what you know—are only the first step.
To be successful in court, you must have finely tuned soft skills. Soft skills are the ability to engage with the judge or jurors, to relate to them, to communicate complex ideas in an easy-to-absorb manner, to handle the most challenging questions with aplomb, and to defend a position without being defensive. Mastery of these soft skills moves you from being an expert on paper to being an expert in the courtroom who can help win cases.-or
What jurors want.
Time and again, in juror debriefs, they talk about which witnesses they liked, which they trusted, and which they believed. If the jurors talk about data or facts at all, it’s most likely through the filter of how they felt about the expert. Often, jurors express their feelings toward experts in the following way: “I didn’t believe a thing that expert said; he was too pompous” or “I didn’t trust that accountant, so I don’t believe her numbers.”
Jurors are naively admitting what neuropsychology proves: Emotions are powerful determinants in decision-making. In the consumer world, experts know that we buy on emotion and only then justify with facts. In the courtroom, the same is true. Jurors will buy—or not buy—your testimony based on how they feel about you. It’s never the other way around.
Developing your soft skills.
So, how do you help the triers of fact have positive feelings toward you? Here are the three most important ways:
- Body language. Research shows that more than 90% of communication is nonverbal. That means everything from the top of your head to the tip of your toes is “communicating.” The judge or jury is watching you like a hawk. Is your body language telling them they can believe you because you are confident and comfortable? Is your posture open and welcoming? Are you making eye contact with opposing counsel even when they challenge your expertise?
- Language. Think of your testimony as a conversation with the judge or jury. So, are you actively inviting them into the conversation? Is your tone warm and friendly? Do you use comfortable, colloquial terms? Are your sentences short and clear? Remember, how you speak to them determines how they feel about you.
- Attitude. This may seem a little obtuse. But people pick up all your unconscious signals. If you show them respect, if you help them understand complex issues, and if you engage them, you’ve now cleared the way to persuade them.
A polished preparation.
It’s clear from both research and real life that it’s not only what you say, but how you say it. It takes time and dedication to be able to deliver calm, clear, concise answers with unflappable confidence.
When working with experts, the focus is on mastering their soft skills. Here’s how to do that.
1. Practice. Cross-examination is where experts can falter in court. Practicing the toughest challenges builds confidence. You might not know exactly what opposing counsel will ask, but by working on potential questions, you can work through any potential ambushes. What will be the biggest challenges to your expertise and your findings? An insurance expert Johnson worked with knew opposing counsel would hammer him on his use of the term “industry standard” in his report. Where was it written down? What authority set it up? His initial wishy-washy answer of “that’s how it’s always been” would only invite a further assault. To give him ammunition and confidence, Johnson conservatively estimated how many files he had handled in his years in the industry. There were over 15,700. Now he could confidently face the challenges with “I’ve handled more than 15,700 files, and this is the industry standard.” The court had no doubt that he was an expert on the matter.
For you, what will be the most treacherous questions from opposing counsel? For example, hypotheticals can be quicksand. If you pause too long, break eye contact, or duck your head, you may appear to be evasive. But a firm, clear “I don’t speculate” or “That’s outside of the scope of the work I was hired for” tells the court there’s nothing to hide.
2. Video feedback. Researchers are clear that at least 50% of people have no idea how they come across. That’s why it’s always a good idea to record the experts you work with. It’s an unblinking look at what the triers of fact will see and how they will judge you.
Many witnesses look at their video with dismay. They had no idea they leaned away when they were nervous or did a funny thing with their mouth or said “um” or “ah” too many times. Armed with this evidence, it’s much easier to clean up the problems that the court will judge as negative. One minute of video is more instructive than one hour of coaching.
Much as you might want to think that the facts speak for themselves, it’s really how you speak about those facts that influences judges and jurors. Take the time to assess your soft skills and then diligently hone them so that you can easily engage and persuade the court.
Deborah Johnson, MC, is the president of High-Stakes Communication. She is an industry expert in effective communication and a six-time Emmy Award-winning writer/producer. She has consulted on a wide variety of high-stakes civil, criminal, and family law cases, including a $5.3 million civil rights case and multimillion-dollar divorces. She is a sought-after national and international speaker and author.