Anticipation of an experience can become the main event in itself, leaving only anticlimax to follow. This was the most visceral takeaway from my recent testimony as an expert in a federal criminal trial--my first trip ever to the witness stand after two decades of asking the questions.
It was a scant three months ago when I posted about the possible upshot of Diaz v. United States, in which the Supreme Court blessed the practice of having an expert witness in a criminal trial testify about the knowledge that "most" people in the defendant's position would tend to have. Both I and Justices Jackson and Gorsuch (not in that exact order) posited that the ruling would encourage a new era of "standard mens rea" experts opining on whether a generic person in the same situation as the defendant would know, or intend, or be willful as to some critical fact in the case.
Then I was asked to do just that, or something like it.
The U.S. Attorney's Office for the Central District of California--where I once prosecuted kickback cases--charged the owner of an substance use treatment facility with violating the Eliminating Kickbacks in Recovery Act (EKRA) by paying several marketers (or "body brokers," in the government's vernacular) to help find patients for the facility. EKRA is a fairly new, awkwardly-written, and somewhat confusing law that regulates how addiction-treatment providers may and may not pay for sales and marketing services. Do it the right way, and you're fine. Do it another way, and you may go to jail.
I have represented providers investigated for potential violations of EKRA and other kickback laws. More importantly, I have advised providers on how they can arrange to pay sales and marketing staff or contractors for their services without running afoul of the law. As anyone who has done the same can attest, it's not easy. EKRA was designed to mimic the much-older Anti-Kickback Statute, but it has important differences, and was written in such a rush that some of its provisions make little sense. Others are ambiguous. Only four courts so far have provided interpretations of the statute, and the federal government has not issued any guidance--preferring instead to simply prosecute those it thinks have crossed the line.
So I was called to explain the above, and opine that it would have been difficult for someone in the defendant's position to know whether the compensation arrangement he had made with outside marketers was permissible. Of that I was quite confident.
But as the big day approached, I was increasingly thinking about the very notion of testifying at all. From my first year of practice some twenty years ago, I have sat with designated witnesses, both the fact and expert varieties, to talk them through the do's and don’ts of deposition or trial testimony. My perspective, of course, was always of the person writing, asking, or objecting to the questions, and not of the one on the firing line. I could see what worked and what did not, but I could not speak to how it actually felt to be under the spotlight, with my own words instantly become evidence rather than just argument.
After all that, I have to admit: it was uneventful. I got off easy: my direct testimony consisted mainly in describing my own experience, talking about EKRA, and explaining my above thesis. Cross-examination--the bane and dread of most witnesses--was a mere three questions, all predictable.
Still, I came away with a few thoughts about what preparation is most effective, particularly for experts:
Listen to the question and answer only that question. It's not a presidential debate--everyone notices when you don't answer the question. And when you act more as an advocate that a source of requested information. Don't spin or argue. Just respond.
Keep answers short where appropriate. If the lawyer asks for a longer explanation, give one. But if it's a simple question with a short answer, just give that.
Stay in your lane. You were asked to give only certain opinions. The judge may have cut that list down. Acknowledge what you are and are not testifying about, and stick to the approved subject.
Keep it simple, genius. Your professional bona fides will have been spelled out for the jury. But try to explain the concepts in plain English, and only those that need to be explained. Analogies are helpful.
Don't look at jury unless invited to. Some lawyers tell witnesses, especially experts, to respond to every question by turning to the jury first, rather than responding to the questioner. I've always thought that looks artificial and coached. The feeling is the same up on the stand. If the questioner asks you to say something directly to the jury, fine. Otherwise, act like you would in an ordinary conversation: answer the person who asked you.
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