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
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
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
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
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 the courtroom.
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 to 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
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.
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.
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
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
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
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 to
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
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
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,
Keep your feet steady
that they are easily forgotten. Meanwhile, the feet are "spilling
the beans," if only people knew how to translate
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
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
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.Kee
p out of retreatThe 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 to sleep.
Listen in neutral
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.
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
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,
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
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 important concept.
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 counsels
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.
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.