Effective Communications - FOR KELLY JACOBS

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[00:00:00] – TAPE STARTS [00:00:01] – A1 JAMES J. MANGRAVITI, JR.: Beware of counsel’s use of trick and misleading questions. If you do not understand a question, say so, and ask that it be rephrased. Beware especially of counsel’s attempt to characterize or mischaracterize your prior testimony. If counsel attempts to mischaracterize your testimony, immediately correct him. [00:00:22] – B1 ATTORNEY: Doctor, you testified at deposition that the plaintiff is a malingerer. You haven’t had any training in the detection and diagnosis of malingering, have you, Doctor? [00:00:31] – C1 WITNESS: I never said that the plaintiff was a malingerer. What I said was that he exhibited signs which may indicate symptom magnification. [00:00:40] – D1 ATTORNEY: Symptom magnification is a modularly parallel and functionally similar prerequisite to malingering, isn’t it? [00:00:47] – E1 WITNESS: I’m sorry, but I don’t understand your question. [00:00:53] –F1 JAMES J. MANGRAVITI, JR.: Effective, ethical, and experienced expert witnesses stay within their true area of expertise. When an expert strays from her true area of expertise, her testimony does not assist the jury, and she runs the risk of losing credibility with the jury. Consider the following example. [00:01:12] – G1 ATTORNEY: You’re an internist. Is that correct? [00:01:14] – H1 WITNESS: Yes. [00:01:15] – I1 ATTORNEY: You’ve been trained to treat people with heart disease, ulcers, diabetes, and the like. Correct? [00:01:20] – J1 WITNESS: Yes, those and many other conditions. [00:01:22] – K1

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ATTORNEY: Mild traumatic brain injury is not one of your areas of specialty. Isn’t that right? [00:01:27] – L1 WITNESS: I do see patients with concussions all the time. [00:01:31] – M1 ATTORNEY: The results of the SPECT scans are crucial in diagnosing mild traumatic brain injury, aren’t they, Doctor? [00:01:36] – N1 WITNESS: Yes. [00:01:38] – O1 ATTORNEY: Isn’t it a fact that you received no training specifically in reading and interpreting SPECT scans? [00:01:44] – P1 WITNESS: Yes. [00:01:45] – Q1 ATTORNEY: And isn’t it a fact you’ve taken no courses at all in the interpretation of SPECT scans? [00:01:50] – R1 WITNESS: Yes. [00:01:52] – S1 ATTORNEY: Wouldn’t you agree, Doctor, that a neuroradiologist would be in a better position to comment on the existence and effects of mild traumatic brain injury? [00:02:04] – T1 JAMES J. MANGRAVITI, JR.: To be an effective expert witness, you need to communicate with the jury. To best do this, you should appear and act professional and maintain a professional demeanor. Avoid flippant remarks or jokes, as these may distract from your credibility. Maintain a confident demeanor. Avoid distracting mannerisms such as twisting your hair or tapping your fingers that may distract the jury from your testimony. To diagnose any such mannerisms, have a non-lawyer watch you give mock testimony and ask for that person’s feedback. [00:02:42] – U1 ATTORNEY: How much are you being paid for your testimony here today?

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[00:02:45] – V1 WITNESS: Not as much as you, Counselor. [00:02:51] – W1 JAMES J. MANGRAVITI, JR.: Experts who answer questions in an arrogant or condescending manner run the risk of immediately and permanently alienating the jury. [00:03:00] – X1 ATTORNEY: Could your opinion about the baggage carousel being the cause of the accident be wrong? [00:03:06] – Y1 WITNESS: Counsel, I have an undergraduate degree from Manhattan College and a Master’s of Science in Mechanical Engineering from Columbia. I worked as a licensed engineer for over 20 years and have written extensively. I’m nationally recognized in this area. [00:03:22] – Z1 ATTORNEY: I take it that your answer is no, that you could not be wrong? [00:03:28] – A2 JAMES J. MANGRAVITI, JR.: You may be asked potentially embarrassing questions in an attempt to discredit you. Answer these questions in a direct manner. If you act evasively, this will only serve to amplify the issue in front of the jury. Answering such questions directly de- emphasize your answers and forces counsel to move on to another line of questioning. [00:03:51] – B2 ATTORNEY: Isn’t it a fact that you failed your CPA exam three times? [00:03:57] – C2 WITNESS: That’s correct. [00:03:58] – D2 ATTORNEY: Not a very good record, is it? [00:04:00] – E2 ATTORNEY: Objection. Argumentative. [00:04:02] – F2 JUDGE: Sustained.. Move on, Counselor, and stop badgering the witness. [00:04:08] – G2 JAMES J. MANGRAVITI, JR.: The expert’s deposition transcript is of crucial importance. If the witness’s answers at trial are different from the answers given at deposition, she can be

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confronted and impeached by her previous inconsistent testimony given under oath at deposition. [00:04:27] – H2 ATTORNEY: Failure to prevent a kickback injury rendered the saw unreasonably dangerous. Correct? [00:04:33] – I2 WITNESS: No, not necessarily. [00:04:34] – J2 ATTORNEY: Do you recall being deposed in your office on January 25th of this year? [00:04:39] – K2 WITNESS: Yes, I do. [00:04:40] – L2 ATTORNEY: And at that deposition you swore to tell the truth, didn’t you? [00:04:44] – M2 WITNESS: Yes. [00:04:45] – N2 ATTORNEY: Let me refer to the deposition transcript, page 17. “Question: Then failure to prevent a kickback injury rendered the saw unreasonably dangerous.” Can you read your answer for the jury? [00:05:03] – O2 WITNESS: I said yes. [00:05:05] – P2 JAMES J. MANGRAVITI, JR.: The implication of impeachment with a prior inconsistent statement is clear: either the witness was wrong or untruthful at deposition, or she is wrong or untruthful at trial. Impeachment is a powerful tool to damage a witness’s credibility. [00:05:25] Before you testify you should always carefully review your deposition transcript. Attempts to impeach you may involve the lawyer taking your remarks out of context. If he is taking your previous testimony out of context, you should attempt to explain how he is doing so. [00:05:44] – Q2 ATTORNEY: Failure to prevent a kickback injury rendered the saw unreasonably dangerous. Correct? [00:05:49] – R2

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WITNESS: Not necessarily, no. [00:05:51] – S2 ATTORNEY: Do you recall being deposed in your office on January 25th of this year? [00:05:56] – T2 WITNESS: Yes, I do. [00:05:57] – U2 ATTORNEY: And at that deposition you swore to tell the truth, didn’t you? [00:06:00] – V2 WITNESS: Yes. [00:06:01] – W2 ATTORNEY: Let me refer to deposition transcript, page 17. “Question: Then failure to prevent a kickback injury rendered the saw unreasonably dangerous.” Correct? [00:06:14] – X2 WITNESS: My answer was yes, but you’re taking my testimony out of context, Counselor. What we were talking about at that point in the deposition was the ordinary purposes for which it was intended, not how it was misused here. [00:06:28] – Y2 JAMES J. MANGRAVITI, JR.: Just as the expert can be impeached by her prior deposition testimony, she can and will be similarly impeached by her prior written reports. [00:06:39] – Z2 ATTORNEY: The deceleration rate you used was 50. Correct? [00:06:42] – A3 WITNESS: That is correct. [00:06:43] – B3 ATTORNEY: That’s not what you said in your initial report of September 5, 1999, was it, Ms. Evans? [00:06:53] – C3 JAMES J. MANGRAVITI, JR.: The effective and successful expert knows her reports cold and is prepared to explain any inconsistencies between her trial testimony and her previously drafted reports. [00:07:07] As we have seen, impeachment from a previous inconsistent statement can be a very powerful tool used to damage an expert’s credibility. When searching for material to

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impeach you with, an attorney is generally not limited to your deposition transcript or reports in the case at hand; he can and will look for material he can use to impeach you in other places, including deposition transcripts from previous cases, trial transcripts from previous cases, written reports from previous cases, and your publications. [00:07:45] In today’s electronic information age, all of this material is becoming more readily available. [00:07:52] – D3 ATTORNEY: It’s your opinion that fibromyalgia doesn’t really exist. Is that correct? [00:07:56] – E3 WITNESS: Correct. [00:07:58] – F3 ATTORNEY: Do you remember performing an independent medical examination on behalf of a plaintiff lawyer regarding the claim of a man named Ludwig Harding? [00:08:06] – G3 WITNESS: Vaguely. [00:08:08] – H3 ATTORNEY: Is this a copy of your written report in the Harding case? [00:08:13] – I3 WITNESS: It appears to be. [00:08:18] – J3 ATTORNEY: Is this your signature on the bottom of page 2? [00:08:22] – K3 WITNESS: It appears to be. [00:08:24] – L3 ATTORNEY: Also on page 2, next to the word “diagnosis,” above your signature, it says “fibromyalgia.” Am I reading that correct, Doctor? [00:08:34] – M3 WITNESS: Yes, you are. [00:08:35] – N3 JAMES J. MANGRAVITI, JR.: There are three things that you can do to help deal with your impeachment during cross-examination. First, testify honestly in each and every case. Second, review your writings, reports, and testimony prior to testifying. Third, be prepared to explain

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either why counsel is taking your remarks out of context or why you have changed your opinion on an issue. [00:09:05] There are a number of trick questions and techniques that counsel will use during cross-examination. I will review a few of these for you. [00:09:15] – TAPE ENDS