Although an attorney, I was never a litigator. However, now, after spending years in the field of personal trust and estate management, I assist individuals serving as trustee or executor in satisfying their fiduciary obligations and occasionally serve as a consultant to law firms and their clients in fiduciary-related disputes. That latter activity often involves testifying as an expert witness in deposition or at trial. While that experience is a very serious matter, there fortunately still is room for humor.
Sometimes, the humor is unintentional, resulting from the posing of a poorly framed question and receipt of a surprising answer, such as in this example:
ATTORNEY: Do you recall the time that you examined the body? WITNESS: The autopsy started around 8:30 PM ATTORNEY: And Mr. Denton was dead at the time? WITNESS: If not, he was by the time I finished.
These interactions are memorialized for all eternity by becoming part of the trial record. You can find a compilation of 50 of some of the better examples in the following post:
When a case involves expert testimony, the opposing party has the right to challenge the witness’ credentials and anticipated testimony. This is often referred to as a “Daubert” challenge, so named in reference to the U.S. Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). My all-time favorite example of a Daubert-style challenge can be found in the following clip from the 1992 movie, My Cousin Vinny:
Thirty years after its release, My Cousin Vinny is arguably one of the best legal movies of all time. In 2012, attorney Max Kennerly wrote a review of the film entitled “Every Young Trial Lawyer Needs to Watch My Cousin Vinny” in which he opined:
My Cousin Vinny is a farce but, as New York Times film critic Vincent Canby noted, “the film has a secure and sophisticated sense of what makes farce so delicious.” That “secure and sophisticated sense” allows it to take the reality of trials — the reality of limited budgets, limited preparation, impatient judges, hostile experts, ruined dress suits, hopelessly mangled questions, completely fruitless arguments, and of real life constantly intruding — and mold it into a comedy.
An old saying in the legal profession contends that a lawyer, particularly a trial lawyer on cross-examination, should never ask a witness a question without already knowing the answer to it. However, some lawyers argue that that statement “is flatly wrong,” and that “an effective cross examination occurs when a lawyer asks a question in a manner and order where a witness either gives the answer the lawyer wants to hear, or, the witness’s testimony is immediately deemed to be a lie by the jury.” (https://www.treblaw.com/trial-myths-never-ask-a-question-for-which-you-do-not-know-the-answer/) My Cousin Vinny provides a delightful twist on the old maxim in a scene in which newly-minted attorney Vincent “Vinny” Gambini asks a question of his fiancée, Mona Lisa Vito, who he has called as an expert witness and who, as the result of issues in their relationship, he must treat as a “hostile witness” antagonistic to the legal position of his clients’ case:
The actress who played Ms. Vito, Marisa Tomei, went on to win the Best Supporting Actress Oscar for her performance in the film.
Serving as an expert witness is a serious matter. In some cases, whether a particular party wins or loses their case can depend on the competence, credibility, candor and communication skills of their expert witness. It is no laughing matter. Yet humor is part of what makes us all human, and the occasional ability to see the humor in a situation can make us appear more relatable to a judge and jury, grounding our expertise in the reality of everyday life and adding weight to the certainty of our opinions.
In my expert opinion, everyone should try it.
