Mindfulness Learned from Testifying as an Expert Witness

July 1, 2013

By Edward "Ted" Siedle, Forbes.com

It may be difficult to imagine that testifying as an expert witness in litigation could offer a lesson in awareness, or “mindfulness,” considered in the teachings of the Buddha to be of great importance in the path to enlightenment.

Late last year when I agreed to serve as an expert in a Madoff-related lawsuit involving tens of millions of pension assets, I was dreading having my deposition taken and eventually testifying at trial. Attaining Buddhahood was not envisioned. As harrowing as the experience can be, I was amazed to discover that it could also be incredibly illuminating. Months later, the insights I developed from the experience have stayed with me.

Testifying as an expert witness is unlike interpersonal experiences in everyday life. We are all accustomed to speaking quickly and imprecisely to one another, half-listening and assuming we understand what others are saying—even completing sentences for them. Those who are lacking in these skills which aid smooth intercourse, suffer.

Being an effective expert witness in a legal proceeding requires that an individual disregard social and conversational norms and instead focus upon mindful communication. That is, the expert must maintain as much as possible a calm awareness of his body, feelings, and mind and seriously reflect upon every word heard and said. Anxiety and anger must be closely monitored due to their potential impact upon the testimony.

An expert witness plays a crucial role in legal cases; both settlement negotiations and any eventual trial may end in disaster if the expert performs poorly. I’ve personally witnessed an expert whose testimony at trial destroyed a solid case. It was like watching a very slow moving train wreck. Having strep throat at the time didn’t help matters.

It’s hard enough to write a fifty-page expert report detailing one’s opinions on complex pension investments; worse still is having to spend twenty four hours, in three eight-hour sessions, defending every word in the expert report perhaps a year or more after you’ve written it.

For an expert who has never testified in a case, it is almost certainly an uncomfortable and frightening experience. Giving testimony involves the lawyer for the opposing party grilling you with often mind-numbing questions as to which you must give sworn answers. In a deposition, no judge is present to determine if the question is appropriate and must be answered.

The opposing lawyer has spent hours putting together a list of questions and strategizing about how he’s going to skewer you; you have few choices other than responding to his assault. In any substantial litigation all testimony of the witnesses—the questions and answers and comments—are transcribed by a court reporter. Because it is under oath, if you try to change the answers you gave during a deposition at trial, the lawyer can use those contradictions to suggest you are lying or untrustworthy. This process is called impeachment of a witness.

“Depositions can be grueling for the expert witness because his background is explored in excruciating detail, as well as the manner in which he arrived at his conclusion and whether or not his opinions conform with other experts. Often experts are examined by attorneys who are not prepared to ask appropriate questions and the deposition deteriorates because the lawyers’ only aim is to embarrass or ridicule the expert,” says an experienced prosecutor who prefers to be anonymous.

Nevertheless, I discovered, there is much to learn from this seemingly odious process.

To begin with, witnesses are often told by lawyers to only answer questions they have been asked and to be certain they understand the questions.

In normal, everyday conversation we often don’t pause to clearly establish what another person is saying. Often our responses are driven by our own communication desires, as opposed to what is being asked of us. The better we listen and reflect, the more likely we will be responsive to others.

Lawyers remind experts that they may need to request that a question be repeated. Great advice for all: Get in the habit of confirming with others that you understand what they’ve said or asked. Repeat the question yourself or ask that others do.

Be mindful how you are feeling minute-by-minute as you respond to others. Are you feeling angry, defensive or anxious? Or are you “full of yourself” exuberantly soaring? Both fearful and fanciful emotions can cloud communications...

Read the full article.

Photo courtesy of CALI on Flickr Creative Commons.

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