T H E J U R Y E X P E R T March 2009 © American Society of Trial Consultants 2009 44 Expert Witness Preparation: What Does the Literature Tell Us? by Tess M.S. Neal Tess M.S. Neal [tmneal@bama.ua.edu ] is a Ph.D. student in Clinical Psychology-Law at The University of Alabama. As a member of Stanley Brodsky’s Witness Research Lab, she had been working on several research activities. Her research interests include witness credibility, juror stress, mitigation in capital trials, issues related to competence to stand trial, death penalty ethics, and the use of public domain information in jury selection. She recently won the University of Alabama’s Award for Excellence in Research by a Master’s Student. Expert witnesses are retained to take the stand and share specialized knowledge with the court – specialized knowledge that may help the trier of fact make the decision they are charged to make. Naturally, expert witnesses (and the attorneys who retain them) want to appear confident and credible on the stand. However, expert witnesses are not necessarily experts at being witnesses (Brodsky, in press). Witness preparation scholar Stanley Brodsky suggests that expertise is situation-specific: an effective expert witness must prepare for the role of expert witness (in press). The rationale for expert witness preparation is supported in empirical research, which has found that experts who are less credible are less persuasive (Boccaccini, 2004; Boccaccini, Gordon, & Brodsky, 2004; Boccaccini, Gordon, & Brodsky, 2005). This article offers a thorough review of the research literature supporting expert witness preparation as a useful tool for effective expert witness communication at trial. Most common methods of expert witness preparation. One of the most common methods of expert witness preparation appears to be self-preparation. There are several books devoted to helping expert witnesses prepare themselves for testimony in court. Warren (1997), Lubet (1998), and Brodsky (1991, 1999, 2004) have all written texts specifically devoted to helping expert witnesses prepare themselves for court testimony. Dozens of other books target specific types of expert witness preparation. Gutheil’s (1998) text targets psychiatrists, Blau’s (2001) targets psychologists, and Ziskin’s (1995) book targets psychiatrists and psychologists who will testify as expert witnesses. There are books written for sociologists who testify as expert witnesses (Jenkins & Kroll-Smith, 1996) and handbooks for mental health professionals as experts (Tsushima & Anderson, 1996). Experts in technical professions (e.g., engineers, chemists, computer analysts, etc.) may turn to Matson’s (1990) or Smith and Bace’s (2002) books for help in preparing themselves. Ceci and Hembrooke’s (1998) edited book and Stern’s (1997) book were written for expert witnesses to prepare themselves for testifying in child abuse litigation. There are also books written for both expert witnesses and the attorneys who are working to prepare them for testimony (Lubet, 1998; Stern, 1997). Attorneys also work with expert witnesses to prepare them for testimony by reviewing, discussing, and sometimes modifying the testimony material with the witness (Applegate, 1989; Boccaccini, 2002). Attorneys have a vested interest in having the experts they retain appear credible and believable on the stand for maximum impact. An important distinction needs to be made between preparing an expert witness to be an effective testifier from preparing an expert witness’s testimony. Clearly, untrue or misleading testimony is unethical and illegal; and it is unethical and illegal for attorneys to prepare a witness to deliver false or misleading testimony (American Bar Association, 2001, §1.2d & § 3.4b). The goal of expert witness preparation is to assist the expert in delivering the message he or she has to share in an effective and responsible manner. The following section presents an overview of suggestions and recommendations for effective witness preparation.