EXPERT WITNESSES
Expert opinion testimony is governed
by FRE 702: “A witness who is qualified as
an expert by knowledge, skill, experience,
training or education may testify in the
form of an opinion or otherwise if the ex-
pert’s scientific, technical, or other special-
ized knowledge will help the trier of fact to
understand the evidence or to determine a
fact in issue.” If the proposed expert testi-
mony will not help the trier of fact you can
keep the expert from testifying at trial. The
Vermont Rule of Evidence 702 is consistent
with the Federal Rule.
The point of calling an expert witness is
not to put a hired gun on the stand. The
consummate trial lawyer will put a teacher
on the stand. For example, after you qual-
ify your expert: Dr. Johnson: We need you
to teach us about the location and function
of the prostate gland in men. Could you
tell us what is meant by the symbols BPH?
Or, tell us, Dr. Johnson, why are you here
today? Use headlines or transition phrases
in guiding the witness’s testimony. The en-
gaging expert should act as a guide that
can lead the fact finder through the tech-
nical, confusing or unclear elements of the
case. Choose an expert who is able to ex-
plain and convey information in a way that
a lay person can understand. Moreover,
the advocate should have the expert re-
peat the attorney’s theory of the case in
his testimony. Permit the judge and jury to
hear your story in another voice. By reit-
erating this story through a different voice,
you have reinforced your theory and per-
suaded the jury to accept your version and
the correct verdict.
OFFER OF PROOF
If the judge sustains an objection during
direct examination precluding a material
line of inquiry, you should make an offer of
proof under FRE 103(a) (2) (c) or VRE 103
(a)(2). An offer of proof states what the wit-
ness would have testified to and why the
proponent wanted to elicit that testimony.
The purpose of the offer of proof, on the
record, is twofold. If there is an appeal the
appellate court can evaluate whether the
omission-error was prejudicial and wheth-
er the appropriate disposition is to remand
or enter judgment for a party. The second
reason is that the trial judge may reconsid-
er and change the ruling.
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ORDER OF WITNESSES
The order of presenting witnesses is one
of the most important strategies to deter-
mine in the trial. The order of proof to be
acceptable to a jury must follow a logical
pattern.
However, in certain cases, consider put-
ting on the defendant as the first witness.
This can have an extremely beneficial ef-
fect, because the defendant is prepared to
testify in line with a properly laid out pro-
cedure by his own attorney. You are not
going to follow the procedure he expects
and you get to cross examine him with
leading questions. The defendant is going
to be completely off balance. Moreover,
since you have taken his deposition you will
know the kind of witness he will make, es-
pecially if he has made inconsistent state-
ments in his deposition. This tactic is not to
be used in every case but with trial experi-
ence you will know the proper case.
ties, there is an almost universal unwilling-
ness by appellate courts to reverse trial ver-
dicts over the misuse of leading questions.
There must be a showing of irreparable
harm that rises to the level of an abuse of
discretion. To show an abuse of discretion
is a very high, if not impossible threshold.
CONCLUSION
During direct examination you have the
opportunity to shape your case to tell an
interesting and compelling story. You want
the jury to believe the facts from your cli-
ent’s point of view. Effective direct exami-
nation begins long before you go into the
courtroom. Prepare the jury instructions or
court’s charge early and let it be your road
map throughout the trial. Success or fail-
ure at trial rest in the manner in which you
prepare and present your witnesses.
The advocate should weave the theme
throughout the trial. Determine a theme
that will predominate and resonate with
the jurors. If you can construct a story
that the jurors can see oneself without im-
properly telling them to put themselves in
the shoes of your client, you have made
great strides in winning your case. More-
over, if you can develop and deliver the
right theme, as a model for understanding
the evidence on direct examination and
throughout the trial, one or more of the ju-
rors will be arguing your case in the jury de-
liberation room. “That is not what this case
is about.” - “This case is about the general
contractor’s shoddy work.”
____________________
James A. Johnson is an accomplished tri-
al lawyer based in Southfield, Michigan. Mr.
Johnson concentrates on serious Personal
Injury, Entertainment & Sports Law, Insur-
ance Coverage and Federal Crimes. He is
an active member of the Massachusetts,
Michigan, Texas and Federal Court Bars.
Johnson can be reached at www.JamesA-
JohnsonEsq.com.
THE VERMONT BAR JOURNAL • WINTER 2016-17
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