by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims
To an experienced packaging expert witness, a yes-or-no question is not one that CAN be answered that way but one that SHOULD be answered that way. Knowing the difference is an important aspect of an expert’s testifying skills.
Opposing attorneys, immediately after posing a question, might add, “Mr./Ms. Expert, it’s a yes-or-no question.” Something to the same effect might immediately precede the question, for example, “This is going to be a yes-or-no question.” In either version, it’s the expert who should reserve the right to classify the question.
It is the expert who is under oath to tell the truth, the whole truth, and nothing but the truth; so, if a yes-or-no answer does not constitute the best compliance with that oath, the expert should speak up accordingly. “I can’t answer the question truthfully with yes or no, Counselor.”
If an expert gives such a response, it ALWAYS should be in good faith and never an attempt to undermine the opposing attorney’s effectiveness. The latter is being an advocate, which is not the role of an expert; besides, when the expert proceeds to give the expanded answer, the jury will decide whether the expert has been disingenuous.
Sometimes an opposing attorney will interrupt, saying that the expert will get an opportunity to expound during redirect. The problem is that the attorney-client might not have plans to redirect, and, even to the contrary, would have a shorter redirect, if the expert does not move away from an honestly-held claim of not being able to truthfully give a yes-or-no answer.
An expert who gives a yes-or-no answer and then attempts to add context (i.e. “Yes, but…” or “No, however…”) also might be interrupted, this time with, “Thank you. You’ve answered my question.” The expert immediately should make it known that that’s not the case; better yet, the expert should begin the answer with the context.
Since court rules allow cross-examinations to utilize leading questions, and since such questions, by nature, lend themselves to yes-or-no reminders, an expert should expect them. But no matter how authoritatively a yes-or-no reminder is posed, an expert should regard it as a request, an expressed desire by the opposing attorney and not binding on the expert.
In contrast, an inexperienced expert might misjudge yes-or-no as a demand and feel obligated to comply. That misjudgment is particularly possible if the attorney-client doesn’t voice an objection; however, such reliance on the attorney-client fails to recognize that an attorney-client has to cite a reason for an objection, other than the opposing attorney’s lobbying for a yes-or-no answer.
The inflection in which a yes-or-no question is posed can imply that the issue is so simple that the expert should give the sought response, a tactic that might cause the expert to comply, out of a desire to be seen as competent. The far better way that an expert can demonstrate competence is to fully understand a question and then give a reasoned answer.
All of the preceding comments have been from a scenario in which the opposing attorney characterizes the question as being the yes-or-no type; but, that doesn’t mean that it never comes from the attorney-client. When it does, it might be an indication that, theretofore, the expert has been too given to narrative, or worse, has been guilty of volunteering information.
It is the expert’s name that appears on the subpoena duces tecum, the deposition transcript, and the witness list: the point being made is that it’s the expert’s testimony, and that it’s the expert who must take responsibility for it. The expert should be satisfied with each answer, knowing that a permanent association is being made. Skillful handling of yes-or-no questions will lessen the probability that, someday, the expert will need to qualify a previously-given answer.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com