good experts born, or can they be trained? The skills that
expert witnesses have to bring with them into the courtroom
are just as sophisticated and subtle as those of the best
litigators, and just as difficult to execute. For
instance, good experts must appear self-confident - but not
arrogant. Polite - but not obsequious. Well dressed - but
not too flashy or slick.
need to speak directly to the point - no waffling - without
sounding blunt. Good experts can communicate to the jurors
that they believe in their case, that they are sincere, without
being perceived as an advocate. And while these experts must
project an aura of objectivity and lack of bias, at the same
time, they have to successfully convince the jurors that their
interpretation is the right one.
need to boil down complicated, esoteric material into easily
understandable pieces of information that make sense to a
lay audience, without appearing patronizing.
good expert witness comes into the courtroom prepared - very
well prepared - having anticipated and practiced answering
the oppositions challenges. Yet under cross-examination,
he/she will want to appear spontaneous and unrehearsed.
experts are good performers, without being theatrical. They
keep an eagles eye on their jurors - checking out the
level of interest, noting which juror is asleep, which is
bored. The worst time for experts to testify is after lunch,
between the hours of 1:30 and 3:00. So during that time, they
have to be especially innovative - talk louder, show an interesting
prop or exhibit or get out of the witness chair and address
the jurors directly (with the judges permission, of
the while, these tasks must be carried out maintaining a demeanor
of "relaxed excellence," an attitude which communicates
control, leadership and power.
is it possible to learn the skills involved in communicating
these subtle nuances? Or do you have to be born with a special
sensitivity and natural talent? As
complicated a job as it is, being a good expert witness can
be learned. And most of the learning has to do with making
the nonverbal language - which is spoken on an unconscious
level - conscious. By bringing the silent, subtle messages
that are communicated nonverbally to light, and examining
them through the lens of reason, one can gain control over
that language and begin to use it in an intelligent, purposeful
nonverbal language is powerful; more powerful than the verbal
because it is the primal language of feelings. Most of the
attributes of a good expert witness are nonverbal attributes,
i.e., self-confidence, politeness, sincerity, preparedness,
awareness, relaxed excellence. These are nonverbal attributes
because they are based on other peoples perceptions
of a person, rather than what the person says about himself.
For instance, an expert can declare to the jury that he is
credible, but that declaration does not make him credible.
The jurors make an expert credible; their perceptions determine
who is or is not credible.
article will outline five nonverbal attitudes which hold the
key to an experts persuasiveness in the courtroom. They
constitute the basic vocabulary of nonverbal communication,
and provide tools to use in communicating successfully with
|Show an Open Posture
to the Jurors
|The first ingredient of a winning courtroom
style is to show an open physical attitude, which illustrates
an open psychological attitude. The jurors perceptions
of an experts honesty, sincerity, self-confidence and
leadership is formed by how open or closed the expert presents
herself to them. The expert who exhibits an open attitude will
elicit openness from the jurors; the expert who closes off from
the jurors will see the same posture mirrored back from them.
The following gestures communicate
an open, honest, cooperative attitude:
|Keep the abdomen open
People have a natural urge to cover up
their abdomen, especially when under stress. Mans soft,
vital organs are located in this part of the body, so when
the abdomen is exposed, people feel unprotected and vulnerable.
One sees this behavior in the courtroom when witnesses fold
their arms over their chest, wear vests and buttoned jackets,
hold papers in front of them and generally try to cover up
the front of their body. These obstructions, however, close
them off from the jurors and create a psychological distance.
Sequestered in their chair behind the
bar, experts are closed off from jurors, so they need to make
a special effort to keep open. They will want to put their
arms on the arm of the chair, instead of folded over their
chest or in their laps; unbutton their suit jacket; and avoid
stacking papers and/or books in front of them. Keeping
an open abdomen is a courageous, receptive posture reflecting
self-confidence and sincerity.
|Show ones hand
Some people approach life like a poker
game: cautious, leery and holding their hands close to their
chest so no one can see whats up their sleeve. This
attitude may be appropriate in some places, but not inside
Experts want to keep their hands visible,
indicating that they come before the jurors hiding nothing.
Let go of a balled fist and show an open palm. The open palm
is an especially appropriate expression of cooperation; people
use this gesture when they greet each other, shake hands,
and ask for understanding. When addressing jurors, experts
will want to use the open palm as an expression of their good
|Address the jurors heart
A third visual sign of a cooperative attitude
is body orientation. A frontal orientation, where people face
each other squarely, communicates interest in the interaction
and a willingness to interact heart to heart.
A sideways orientation, when people literally "turn a
cold shoulder" to others, indicates indifference or disinterest.
And finally, when people leave the interaction, they literally
"turn their back" on it, communicating their lack
of interest in the other person.
Experts need to communicate clearly that
they are involved in the courtroom interactions, so they will
want to go out of their way to give a frontal orientation
to those who address them. For instance, when addressed by
the judge, it is preferable to actually turn in the chair
in order to give a frontal orientation to answer the judge,
instead of simply turning ones head. When attorney clients
address their experts, the experts will want to give the same
frontal orientation. And even with opposing counsel, a frontal
orientation is desirable because it communicates a sense of
fairness and cooperation in seeking justice.
When addressing jurors, it is especially
important for experts to turn in their chairs and meet the
jurors heart to heart. But this raises an interesting
question: when should experts address the jury and when should
they address the attorney who is asking the questions? Jurors
are the more important audience, without doubt. On the other
hand, experts can be perceived as rude if they ignore the
person who is talking to them - i.e., friendly counsel.
This problem can be addressed by the attorney
instructing his expert to "tell the jurors" the
answer. Once the attorney gives the expert permission to answer
to the jurors - then the expert has a justification for turning
away from the attorney. This verbal prompt also establishes
a pattern of behavior, so even when counsel does not give
the expert the prompt, she can still turn to the jurors with
|Show a relaxed demeanor
The fourth sign of an open posture is
lack of muscle tension. According to the research, power is
perceived as expansive, casual and relaxed. Being relaxed
communicates self-confidence and control. When the jurors
look at an expert, they want to see self-assurance; after
all, they depend on the expert to take them through the testimony
so they can understand it. If the expert looks worried, he
doesnt inspire confidence in the jurors that they are
in good hands. So relaxed excellence is the key
to ones authority in the courtroom.
People unconsciously hold a great deal
of tension in their face - the forehead, eyebrow, mouth, chin,
jaw - as well as shoulders, hands and feet. Holding onto tension
shuts out other people, because ones energy is being
used to hold onto the tension instead of reaching out to touch
Before experts take the witness stand,
therefore, they are well advised to get the tension out of
their face and body. Shaking the head, arms and legs, as well
as alternately tensing and relaxing those parts of the body
where the muscles are contracted is a good way to release
pent-up energy. Then one is ready to meet the jurors feeling
confident, in control and at ease.
|Keep in Visual Control
|Eye contact is the most powerful communication
tool an expert can bring with her in the courtroom. Nonverbal
communication around "looking gestures," is particularly
significant and often identifies the status one has in the courtroom.
So learning the rules of the game is important.
|Maintain steady eye contact
|With Opposing Counsel
Maintaining steady eye contact keeps one
in control of the interaction and is especially important
for experts. When opposing counsel is glaring at the witness,
trying to intimidate her - using his eyes as a weapon - it
is vital that she respond with a steady gaze. As soon as she
looks away, she has lost control of the interaction and assumed
a submissive posture, because she can no long see what counsel
might be up to. She becomes the "observed" one -
which is a vulnerable posture - instead of the one observing.
Experts want to return eye contact when being observed.
When an expert has to look at documents
or study evidence, she will naturally lose the contact, putting
opposing counsel in visual control. To compensate for losing
eye control, she will want to turn the interaction into one
where she makes opposing counsel wait for her.
Making someone wait is a political act.
The person who has to wait is the submissive one; the one
who other people wait for, or wait on, is the powerful one.
Instead of hurrying through the documents in order not
to keep counsel waiting, the expert witness will want
to do just the opposite, i.e., take her good time in going
through the papers, until counsel begins to get impatient
with having to wait. By making him wait, she is
asserting her authority in the courtroom. The caveat here
is that she will not want to take too long, because the jurors
are waiting for her, as well.
|With Friendly Counsel
Giving eye contact not only keeps one
in control, but is a nice gesture. Giving visual attention
is the nonverbal way of saying: "I think you are important
and worth listening to." So in giving eye contact, one
is giving that person credibility. When counsel gives his
expert visual attention, counsel is passing his credibility
onto that expert by saying, "You have something important
to say." And when the expert returns that contact, he
is returning the mutual respect.
The visual connection establishes the
psychological connection. The expert and his counsel are a
team in the courtroom, and it is important to present a united
front. Experts should give counsel their visual attention
when counsel is talking to them and never look away, or at
notes, or at the judge, or jurors. This establishes respect
between the expert and his attorney.
Experts can enhance an attorneys
authority in the courtroom, as well, by "looking to"
him for guidance, leadership, answers. When opposing counsel
objects during examination, for instance, an expert can give
authority to counsel by looking to him for guidance. Even
if the expert understands from the judges answer how
to proceed, by looking to counsel that split second and allowing
counsel to direct her, she is communicating that counsel is
indeed the leader of the team and she will follow his advice.
In the end, adding credibility to counsel will enhance the
|Rehearse the rough spots
When people do not know how to answer
a question, their first nonverbal response is to drop their
eyes while they think of something appropriate to say. In
that split second, when they lose eye contact, they lose their
credibility. When an expert witness drops her eyes, opposing
counsel will pick up the hesitation like a hound picks up
a scent, and nail her to the wall with it. Losing the visual
control is a certain sign of losing psychological control.
If an expert has been maintaining
good eye contact, and then suddenly loses it at a particular
point in her testimony, counsel will know that is the area
Experts will want to rehearse the answers
to those questions which make them feel uneasy, so they can
deliver their responses with a steady eye contact. Steadiness
is the key here. The worse possible reaction when under assault
is to flinch, which indicates that the blow has struck. Instead
of allowing the verbal attack to hit its target, the expert
witness will want to respond by maintaining a steady gaze,
without a moments hint of vulnerability, while silently
thinking of a good answer. As long as the expert can maintain
her steady eye contact, opposing counsel will never guess
her weaknesses or vulnerabilities, and neither will the jurors.
|Win jurors, not arguments
When an expert is able to keep steady
eye contact under pressure, the jurors see her as unfaltering.
When she maintains visual contact with opposing counsel generally,
showing respect to the opposition, they see her as a fair
and cooperative witness, ready to listen and answer the questions
honestly, in the pursuit of truth. The jurors perceptions
of an expert is the key to an experts success. More
than winning arguments, experts need to win jurors.
Jurors are not experts and quite often
do not understand an experts complicated testimony.
Rather, the experts powers of persuasion on the stand
come from winning the jurors faith in her as an expert.
When the experts cannot agree on the "truth," how
can one expect the jurors to know it? The only recourse jurors
have is to choose the witness they find most credible, trustworthy
and likable. That person becomes the one they rely on to help
them find the answers; that is the one they accept as having
more knowledge, experience and background than her opponents.
Jurors generally vote on people,
more than on the complicated evidence.
|Maintain a Balanced Stance
The further away from the face one goes,
the more the body leaks its true feelings. People can generally
control facial expressions and put on facades to fool people
- i.e., the fakey smile, nervous laugh, toothy grin. But the
human is not so aware of his hands, and will often reveal
a nervousness by unconsciously fidgeting with fingers, rubbing
palms, picking nails.
But rarely is one aware of the feet and
what they are doing. So when one wants to know what is going
on in someones head, the smartest thing to do is look
at his feet. They are so far removed from the brain physically,
that they are easily forgotten. Meanwhile, the feet are "spilling
the beans," if only people knew how to translate the
|Keep your feet steady
Very often, the feet express the nervous
tension that is not getting out through the mouth and hands.
Foot tapping, leg swinging and toe thumping are common ways
nervous energy comes out in the feet.
Other ways the feet leak: When one is
not ready to move, his feet will stay up in the air; when
he doesnt know what direction to move in, one foot will
point one way and the other will point in the other direction;
when his head is going around in circles, his foot will make
circular patterns in the air.
When testifying in the courtroom - even
though jurors cannot see an experts feet - the expert
will want to plant them firmly on the floor. This will keep
him grounded and communicate to the jurors that this expert
is steady, reliable and has his feet on the ground.
An experts demeanor should communicate strength of conviction,
not easily caught off balance. When an expert has both feet
are on the ground, opposing counsel cannot push him
over easily, or make him lose his balance.
Sitting with legs folded might be comfortable,
but it communicates a hesitancy, lack of balance and inability
to act. When an expert sits with one foot in the air, he does
not communicate the same steadiness that two feet on the ground
In addition, an expert will want to point
his feet in one direction, to feel more directed. Keep them
still , to still his mind. And keep the weight evenly distributed
on both feet, to make him feel more level headed.
Experts will want to avoid shifting around
in their seats, with their weight moving from side to side.
Shifting makes one look shifty. Indeed, people shift around
physically when they do not feel on solid ground intellectually.
So keeping the feet on the floor, with the weight balanced,
is an important stance for experts.
|Control Your Leanings
Too much advocacy is death for an expert
witness. Rather, an expert has to maintain that fine line
between projecting herself as 100% objective in the way she
analyzed the data, but 100% an advocate in the conclusions
she reached. This is a difficult balance to maintain. Too
much objectivity, and an expert looses her impact; too much
advocacy, and an expert looses her credibility.
How to maintain that balance? Here, again,
using ones nonverbal communication on a conscious level
can underline and add emphasis to the verbal message. The
direction one leans in communicates ones leanings. Leaning
forward communicates advocacy; leaning backwards communicates
lack of interest and an upright posture communicates neutrality.
By being aware of the direction in which one leans, one can
communicate the intended message at the correct time.
|Lean forward when presenting
|When advocating their results, successful
expert witnesses reach out to their audience by leaning forward,
talking at a steady, sure pace and using gestures to communicate
their message more emphatically. Jurors perceive these gestures
to mean the expert is self-assured and engaged in the case.
|Keep out of retreat
|The witness who leans back in his chair,
or wraps his feet around the legs of the chair, or holds his
voice back - speaking slowly, softly and ponderously - imprisons
the bodys energy and keeps it from reaching the jurors.
This kind of witness communicates reserve, skepticism and passivity.
These kinds of postures communicate psychological retreat: aloofness
and arrogance. These are the kind of experts who put jurors
|Listen in neutral
An upright posture, where the energy does
not move one way or the other, is a neutral position. The
head sits straight, the body sits straight and the hands rest
at the side. The overall attitude is one of disinterest.
Neutrality is a powerful posture in the
courtroom, but difficult to maintain for anyone who has "leanings"
one way or the other. The body will want to express its feelings,
and to restrain that natural reaction demands a concentrated
effort. For example, judges try to stay objective and neutral,
but even they give away their biases by the direction they
However difficult this posture might be
to maintain, objectivity and neutrality is the attitude experts
will want to assume when explaining the process they used
to come to their conclusions. It might not seem difficult
to maintain a neutral posture when discussing a scientific
methodology; on the other hand, even though the process might
be scientifically objective, the expert chose the procedures
and naturally supports her own work. But the effort is worth
the trouble, because the physical attitude supports the verbal
message and gives more credibility to the expert.
In summary, experts will want to lean
slightly forward when answering questions and engaging in
the interaction; stay in neutral when explaining procedures,
listening and communicating neutrality; and stay back when
expressing hesitation and lack of involvement.
|Take Up Personal Space
|An important ingredient of a winning professional
style in the courtroom is to project self-confidence. Self-confidence
is communicated by the way a person uses his personal space.
The more space a person takes up, the more important people
perceive him to be. The more important people perceive him to
be, the more space they give him. The expert who commands a
large presence in the courtroom is the expert who has the authority.
|Expand your gestures
The first imperative in expanding personal
space is to broaden ones gestures. Self-confident people
make broader gestures. One way to spread out and take
up space is to create space between the arms and the
torso - much like a bird spreading its wings. Instead of the
arms being glued to the torso when gesturing, the expert will
want to free his arms, so that he can reach out and take up
the space around him. The whole picture of someone becomes
more interesting as it expands and moves in interesting ways.
So by making this little adjustment, an expert can change
the jurors perceptions of him markedly - from a dull,
but competent, academic to an interesting, competent academic.
A second way to take up personal space
is to avoid any kind of self-touching. Self-confident people
reach out and touch others; they do not imprison their energy
by keeping it contained within their own body. So experts
will want to avoid holding onto themselves; even holding ones
hands in the lap is to be avoided. And expert witnesses will
want to avoid holding onto things - like papers, calculators
The best place for the hands is on the
arm of the chair, or if there is no arm, then on the lap -
but not touching. And when it is necessary to look at papers
or use a calculator, the expert will want to put the papers,
pencils down after he is finished using them. And when standing,
the same imperative holds true: experts should avoid any kind
of self-touching, i.e., holding hands - either behind or in
front of the body, putting them in a pocket, holding onto
pointers, pens, etc.
|Claim your territory
The second imperative is to claim the
physical space in the courtroom. As long as witnesses are
sitting in the witness chair, their space is limited to a
small area. As soon as they leave the chair and walk down
to the floor of the courtroom to draw something on
a flip chart, explain a chart, work with a prop - they expand
their space and increase their importance. Experts will want
to arrange with the attorney, therefore, to be called to the
floor, which motivates their leaving the witness stand. Or
if the attorney fails to bring his witness to the floor, then
the expert himself will want to ask the judge if he may approach
the jurors in order to demonstrate a point, or explain an
The important point is to move around
in the courtroom. The more territory an expert can claim,
the more importance the jurors will give him.
|Guard against opposing
Experts need to guard their personal space
carefully. Opposing counsel might try to invade it by approaching
too closely, pointing, interrupting, talking loudly, looking
down at, or staring. The professional expert will be conscious
of these kinds of nonverbal assaults and meet them forcefully.
Since experts are glued to the witness
stand under cross-examination, their responses are limited
- but nevertheless, available. If opposing counsel points,
stares, yells or looks down at an expert witness, the appropriate
response is to look away - not down, not up, not at friendly
counsel or the judge - but sideways, away from the assault.
A sideways maneuver puts the expert in the position of not
looking at the person who is looking at him - which is a power
position. So the expert will want to assume the superior posture
and refuse to acknowledge counsels aggressiveness. By
so doing, the attacks have no target and consequently, get
When opposing counsel tries to interrupt
a witness, the witness should continue talking - even if it
means talking over counsels words. A witness must not
allow opposing counsel to invade his space and take the floor
away. If counsel continues to talk over the experts
words, counsel will be perceived as the aggressor, not the
witness. The jurors will think counsel is unfair in not allowing
the witness to present his evidence. And they will perceive
the expert as a strong, self-assured and engaged witness.
To answer the initial question of this
article: Are good experts born, or can they be trained? The
answer is clear. And the nonverbal behaviors discussed in
this article are designed to help experts perform even better,
to win the trust and confidence of the jurors by projecting
a style of authority, openness, control, balance, power and
engagement. Nonverbal messages, which are the means by which
experts establish rapport with the jurors, are crucial to
getting the verbal messages across. Experts will want to make
sure that when they are in the courtroom they project the
style they choose, not merely the one they fall into.
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