This essay is an autobiographical account of my experience as an expert witness in matters of franchising and licensing disputes. My experience within the franchising industry consists of various capacities as a franchisee, franchisor and a franchise advisor to private and public companies operating in the United States and abroad. I have provided expert testimony in a wide range of franchising and licensing disputes at trial and arbitration.

Additionally, on numerous occasions, opinion letters that I authored have led to settlement agreements avoiding lengthy court proceedings and unnecessary legal fees.

The thought of getting up on the witness stand can be daunting for many first-time experts according to psychologists, says David DeMatteo, JD, PhD, of Drexel University's program in law and psychology. "Some fear the public speaking aspect; others are nervous about having their work so publicly scrutinized."

I remember the first time that I took the stand in a franchise dispute matter appearing in the Superior Court of California. I was retained by plaintiff's counsel and was extremely confident that my testimony would allow the plaintiff-franchisee to prevail. After a comprehensive review of the original complaint, defendant's response, deposition appearances, and interviews I conducted with the plaintiff I concluded that defendant-franchisor had breached the franchise agreement.

Further, the breach was also inconsistent with the franchisor-defendant's franchise disclosure document. After plaintiff's counsel finished my direct examination I was convinced that my testimony would decimate the defendant's position.

Next, I would face opposing counsel on cross examination. Well, that taught me a lesson I would never, ever forget. Although I considered myself to be an expert in franchise law, program development and franchise sales, I neglected to realize back then that the opposing counsel was an expert in cross examination.

She kept me on the stand for several hours and relentlessly questioned everything from my qualifications as an expert to my interpretations of both the franchise agreement and the franchise disclosure document. It was the most stressful appearance of my expert witness career. I am pleased to report that The Honorable Judge Kevin Enright of the San Diego Superior Court issued a final Statement of Decision in our favor.

The point is to never underestimate opposing counsel, always assume that they are as smart or smarter than you, and more than likely, you don't have experience as a litigator.

So here is my advice regardless of your expert knowledge to help ensure a good appearance at trial.

Prepare well. Ask the lawyer to send you all the information he or she can to familiarize you with the case. Then use that information to draft answers to the likely flow of questions for the time you will be on the stand. Questions to expect during the direct examination are usually straightforward and discussed with your lawyer. If you are there to discuss an evaluation, for example, an attorney will likely ask you to state the purpose of your evaluation, describe how you conducted the evaluation and what your main findings were.

Cross-examination questions can be trickier to predict, but tend to focus on the limitations of your expertise, procedures or conclusions, such as, "Isn't it true that you cannot be 100 percent certain in your conclusion in this case?" For further insights, ask colleagues about the sort of questions they faced when they have testified. "Lean on your colleagues," says Kim Sanschagrin, JD, PhD, of Bel Air, Maryland, and a member of APA's Committee on Legal Issues. "If you've never testified before, visit the courtroom ahead of time and practice walking up to the witness stand from where you'll be seated as a way to reduce your anxiety," says Sanschagrin.

Try to use simple language. Professionals often make the mistake of filling their testimony with jargon that is unfamiliar to the jury, says Sanschagrin. "If you're testifying on a statistical analysis, the jury's eyes might glaze over," she says. To avoid that, rehearse your answers with friends outside the field to see if they can follow your message. Ultimately, professionals who testify should see their role as an educator of the court, says Joel Dvoskin, PhD, "Blowing them away with complicated verbiage and sophisticated theories just encourages juries to dismiss an expert's input," he says.

Anticipate the traps. The opposing attorney's job is to highlight flaws in your work and poke holes in your testimony; I certainly learned that in my first experience as an expert. One strategy for undermining witnesses is asking several questions at once, often at length and with a slightly different interpretation of what you have just said, which can be tricky to follow. If you answer such compound questions too quickly, you run the risk of acknowledging any misinformation the attorney slipped in. To avoid that, be sure to ask the attorney to repeat the questions one at a time. Listen to questions very carefully and feel comfortable and assertive correcting what's wrong."

Try to dictate the pace. Lawyers often try to conduct a cross-examination at a rapid pace as a way to confuse a witness, but they can't make you answer fast. Try to take control of the pace, pausing before speaking so you can concentrate on answering accurately. If I am cut off on the witness stand, I usually turn to the judge and say on the record, "That wasn't my complete answer Your Honor, would you like me to finish?" You can also slow the pace during rapid-fire questioning by taking a sip of water, adjusting your glasses or shifting your posture.

Watch your body language. Sitting with your arms crossed can be seen as a defensive posture; scratching your head can be interpreted as a sign of confusion. Where you look while you're speaking is also important. Witnesses should look at the attorney as he or she is posing a question, but at the jury or judge (if there's no jury) while answering. It is easy to get wrapped up in a one-on-one conversation with the attorney, but they are not the ones who need the information.

Acknowledge your limitations. No matter how thorough your evaluation, a good attorney may find some tasks you didn't do or are flawed. If that happens, don't get defensive. Acknowledge the shortcoming and explain why you thought a certain step wasn't necessary or possible. And if you get a question you don't know the answer to, it's fine to say, "I don't know."

Federal Rule of Evidence 702. It would probably be helpful to briefly mention the rules governing expert witness testimony. The rules governing expert witness testimony are primarily outlined in Federal Rule of Evidence 702. According to this rule, a witness may be qualified as an expert by their knowledge, skill, experience, training, or education. Here are the key points:

Assistance to the Trier of Fact: The expert's specialized knowledge must help the trier of fact (judge or jury) understand the evidence or determine a fact in issue.

Sufficient Facts or Data: The testimony must be based on sufficient facts or data.

• Reliable Principles and Methods: The testimony must be the product of reliable principles and methods.
• Application of Principles and Methods: The expert must have reliably applied these principles and methods to the facts of the case

This rule ensures that expert testimony is both relevant and reliable, helping to provide clarity complex issues that require specialized knowledge.

If you currently have not provided expert testimony, I encourage you to explore this profession. Most expert witnesses thrive on the challenges presented in legal cases; it's what continues to keep me in the game!

Written By: Carl J. Kosnar