It was after the lunch hour and I was testifying as a CPA expert on an economic damages case. The venue was a superior courthouse in Santa Ana, California. The day was a hot one and I was testifying at a jury trial. I had been retained by the plaintiff. My testimony was laced with a great deal of technical accounting jargon which I delivered in an almost expressionless and mundane manner.
About twenty minutes into my testimony, I glanced over at the jury members. I saw one of them, a young man, probably in his mid-thirties, dozing. Another ten minutes went by. I took a quick peek at the jury again. This time I saw an elderly fellow’s head bobbing back and forth. He was trying his best to stay awake. If this wasn’t enough to shake my confidence, I looked up at the judge – his eyes were closed. Was this just his way of processing what he was hearing or was he actually dozing too? I wasn’t sure.
This particular trial occurred about 20 years ago. I had not been involved in too many jury trials up to that point. This one taught me a lesson that I’ve never forgotten. I needed to do a better job of keeping the jury – and judge – engaged and interested in what I had to say.
I now try to be more of a teacher. One who does not use a lot of technical jargon – or, if I do, I fully explain what it means. If I am testifying before a jury, I look at and attempt to engage them while I am speaking. If I am testifying at a bench trial, I make it a point to turn and make eye contact with the judge. I do this for the purpose of not only engaging the judge, but to determine from the judge’s facial expressions whether the judge is following what I’m saying.
If I notice a questioning look on the judge’s or jury members’ faces, I revamp my testimony. My opinions are unchanged, but I just say them in a way that is easier to understand and interesting to hear by a jury or the judge. I also will try to vary the inflections in my voice and use my hands more to emphasize certain points of my testimony. I’ve gotten used to doing this but for some experts who are new to testifying, it may take them some time to feel relaxed enough to do the same.
Sometimes I find it’s good to use a bit of light humor as long as it is courtroom appropriate. Members of the jury just might relate more to me and what I have to say if they know that I have a sense of humor.
Donald R. Bays, CPA, ABV, CVA, CFF