Comment on this article:


(Optional. We will not publish your email address here or elsewhere.)


Maximum 5,000 characters. Character count: 0

When you submit this message, you give The Jury Expert permission to publish it on the web. As this is a professional journal, editors will publish comments that are courteous and respectful (even when in disagreement). Thanks for participating in the TJE community!

Recent Comments:

Rita Handrich comments on Jurors' Perceptions of Attorneys See the comment

Erica Anderson comments on Jurors' Perceptions of Attorneys See the comment

Marjorie Fargo comments on SJQs for White Collar Defense See the comment

Michael Brockwell comments on Packing Like a Pro See the comment

Chris O'Brien comments on Effective Voir Dire See the comment

Darla Russell comments on Jurors' Perceptions of Attorneys See the comment

Paul Luvera blogs on Effective Voir Dire See the blog post

Mitchell Thomas comments on Jurors' Perceptions of Attorneys See the comment

Brian Patterson comments on Trial Graphics on the Cheap See the comment

Jason Barnes comments on Bifurcation/Hindsight See the comment

Jason Barnes comments on Trial Graphics on the Cheap See the comment

Jason Barnes comments on Packing Like a Pro See the comment

Joshua Franklin comments on Effective Voir Dire See the comment

Annie Gough comments on Trial Graphics on the Cheap See the comment 

Matt Groebe responds to Charli Morris on Bifurcation/Hindsight See the comment

D. Montiel comments on Trial Graphics on the Cheap See the comment

Francesca Cerrato comments on Trial Graphics on the Cheap See the comment

Charli Morris comments on Bifurcation/Hindsight See the comment

Ted Brooks comments on Can the iPod Pick Your Next Jury See the comment

Sean comments on Can the iPad Pick Your Next Jury? See the comment

Frank Pray comments on How to Present Yourself in Court See the comment

Kathy Kellermann comments on Political Attack Ads (What Can We Learn?) See the comment

Joe Guastaferro comments on Do We Need Einsteins in the Jury Box? See the comment

Karen Franklin has blogged on the Psychology of Voir Dire at her blog In the News. See the blog post

Kathy Kellermann comments on Police Deception During Interrogation See the comment

Kathy Kellermann comments on Political Attack Ads (What Can We Learn?)  See the comment

Charli Morris comments on Political Attack Ads (What Can We Learn?) See the comment

Laura Dominic responds to Kathy Kellerman's comment on Gender in the Courtroom See Laura's response

Kathy Kellermann comments on Persuading with Probability See the comment

Kathy Kellermann comments on Gender in the Courtroom See the comment

Paul B. Kennedy has blogged on Gender in the Courtroom at his blog: The Defense Rests See the post

Edward Schwartz has commented on Could the iPad Pick Your Next Jury See the comment

Kathy Kellerman has commented on When Jurors Nod See the comment

Doug Keene has blogged on Working for Justice in Neshoba County at his blog: The Jury Room See the post

Phil Monte comments on SJQs for The Holy War See the comment

Dan Hull comments on Managing & Mentoring Millennials See the comment

Sean Overland comments on Out of the Shadows, Into the Jury Box See the comment

Blawg Review #283 cites Managing & Mentoring Millennials See Blawg Review #283

mikee  comments on Will It Hurt Me in Court? See the comment

Rita Handrich has blogged on Managing & Mentoring Millennials at her firm blog: The Jury Room See the post

Paul Scoptur has pointed readers of his blog (Scoptur's Law) to the new issue of The Jury Expert See the blog post

Thaddeus Hoffmeister has pointed readers of his blog (Juries) to the new issue of The Jury Expert See the blog post

Michael Drake at Strange Doctrines blog has pointed his readers to Grime and Punishment See the blog post

Roland Stark has commented on Persuading with Probability See the comment

Keith Lee has blogged on Tattoos, Tolerance, Technology and TMI at his blog: An Associate's Mind See the post

Jason Barnes has posted a link on a recent Batson ruling from the 9th Circuit See the link

The University of Texas at Austin Law School Advocacy Program recommends The Jury Expert to their law students See the Law School press release 

Karen Franklin has blogged on What We Do (& Do Not) Know About Jurors & Race See the post

Doug Keene has blogged on Emotions in the Courtroom at The Jury Room blog See the blog post

James Goulding has blogged on Tattoos, Tolerance, Technology & TMI at Mean is Out blog See the post

Doug Keene has blogged on Tattoos, Tolerance, Technology & TMI at The Jury Room blog See the blog post

Daniel Denis responds to Jason Barnes comment on Persuading with Probability See the response

Walter K. [@noblindfold] has blogged on Tattoos, Tolerance, Technology & TMI See the blog post

Jason Barnes has commented on Persuading with Probability See the comment

David Badertscher has blogged on Hate Crimes and Racial Slurs at Criminal Law Library Blog See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Jaime and Kevin comment on East Texas Patent Trials See the comment

David Fish comments on A Courtroom Full of Reptiles See the comment

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Tony Duncan has pointed readers of his blog to Jurors and the Internet See the blog post

Daylight Atheism blog has posted on America Hates Atheists See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles at idealawg blog See the blog post

Mark Bennett has blogged on A Courtroom Full of Reptiles at Defending People blog See the blog post

'Joe Attorney' has blogged on A Courtroom Full of Reptiles at Doing Justice blog See the blog post

Joe Markowitz has commented on A Courtroom Full of Reptiles See the comment

Rita Handrich has pointed readers of The Jury Room blog to this issue of TJE See the blog post

John Mittelman has commented on A Courtroom Full of Reptiles See the comment

Victoria Ward has blogged on A Courtroom Full of Reptiles See the blog post

Stephanie West Allen has blogged on A Courtroom Full of Reptiles See the blog post

Jason Barnes comments on A Courtroom Full of Reptiles See the comment

Brian Patterson comments on Biggest Bully in the Room See the comment

Todd Schlossberg comments on A Courtroom Full of Reptiles See the comment

SCOTUS blog references Beneath the Robes & Behind Closed Doors See the blog post

Marjorie Fargo has commented on A Courtroom Full of Reptiles See the comment

Paul Scoptur has pointed readers of his blog, Scoptur's Law to A Courtroom Full of Reptiles See the post

Elie Mystal has referenced Beneath The Robes & Behind Closed Doors in Non Sequiturs at Above the Law Blog See the post

Montgomery Delaney has commented on A Courtroom Full of Reptiles See the comment

Ken Broda-Bahm has commented on A Courtroom Full of Reptiles See the comment

Mark Bennett has commented on A Courtroom Full of Reptiles See the comment

Jessica Hoffman has commented on A Courtroom Full of Reptiles is a Bad Idea See the comment

Thaddeus Hoffmeister has blogged on Avoiding Problems During Jury Selection in the Age of Batson at Juries Blog See the post

Ken Broda-Bahm comments on A Courtroom Full of Reptiles is a Bad Idea See the comment

Steve Schlicht comments on America Hates Atheists See the comment

Stephen G. Schwarz has cited Jurors and Technology in Trial in a post at the Faraci Lange blog See the post

David Shackelford has cited America Hates Atheists at the Shark Attack blog See the blog

Groklaw cites Practical Tools for Staying Organized in Jury Selection & Voir Dire See the post

Doug Keene has blogged on Rules Don't Apply to Me at The Jury Room blog See the post

Steven G. Pietrick has commented on From the Conference Room to the Courtroom See the comment

John Buntin has blogged on Rules Don't Apply to Me at 13th Floor blog See the post

Razib Khan has blogged on America Hates Atheists at Gene Expression blog See the post

Steven Gursten has blogged on Injured Body, Injured Mind See the blog post

Gribble the Munchkin comments on America Hates Atheists See the comment

Stuart Bechman comments on America Hates Atheists See the comment

science + religion TODAY has blogged on America Hates Atheists See the post

Hemant Mehta has blogged on America Hates Atheists at Friendly Atheist See the post

Stephanie West Allen blogs on Toying with Juror's Emotions at idealawg See the post

Marc Gray comments on America Hates Atheists See the comment

Stephanie West Allen blogs on The Rules Don't Apply to Me at idealawg See the post

Robin Hanson has cited America Hates Atheists in his blog Overcoming Bias See the post

LawyersUSAOnline has cited The Rules Don't Apply to Me See the link

Brian Patterson comments on Using Technology in Litigation See the comment

Ted Brooks comments on Using Technology in Litigation at his firm blog Court & Trial Technology See the post

'Anonymous Atheist' has commented on America Hates Atheists See the comment

Elaine Lewis comments on Goals of Witness Preparation See the comment

Charli Morris comments on "The Prep Question" See the comment

David Shafer comments on "The Prep Question" See the comment

Lee Keller King has commented on Will It Hurt Me in Court See the comment

Doug Keene has blogged at The Jury Room on Sixteen Simple Rules See the blog post

Steve Pietrick has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Melissa Gomez has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Adam Benforado has commented on Law on Display via Situationist Blog See the comment

John Day has blogged at Day on Torts about Jurors & the Internet See the blog post

Rita Handrich has blogged at The Jury Room on Colorism See the blog post

Philip Cave has blogged at Court-Martial Trial Practice on 16 Simple Rules for Better Jury Selection See the blog

Dennis Elias has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Paul Scoptur has pointed his blog readers to this issue of The Jury Expert See Paul's blog

Edward Schwartz has blogged on Damages: The Defense Attorney's Dilemma See the blog post

K_Yew has pointed his blog readers to 16 Simple Rules for Better Jury Selection See the blog

Sean Overland has blogged on Damages: The Defense Attorney's Dilemma See the blog post

Feminist Law Profs blog wants to know where the women are. We know where

Lawyers USA has written a piece featuring Katherine James and her article on Live Communication See the article

Steven G. Pietrick has commented on Preparing for the Prep Question See the comment

David Oliver at Mass Torts: State of the Art Blog has cited 16 Simple Rules for Better Jury Selection See the blog

Scott Henson of Grits for Breakfast has cited 16 Simple Rules for Better Jury Selection See the blog

Julie Campanini has blogged on Out & Proud See the blog post

Grey Tesh sends readers of Palm Beach Criminal Lawyer Blog to see 16 Simple Rules for Better Jury Selection See the blog post

Tyler Cowen sends his readers from Marginal Revolution blog to see 16 Simple Rules for Better Jury Selection See Tyler's blog

Forensic Focus Forums has begun a discussion on Law on Display See the forum posts

Book Forum has cited Don't Poke Scalia on their Omnivore page See the post

Book Forum has cited Jurors & the Internet on their Omnivore page See the post

Christina Spiesel comments on Ted Brooks' blog post regarding Law on Display See the comment

Susan Levy comments on Damages: Defense Attorney's Dilemma See the comment

Edward P. Schwartz comments on Law on Display See the comment

Karen Franklin has blogged on this issue of The Jury Expert See the blog

Sean Overland has blogged on Jurors and the Internet See the blog post

Publius comments on Enron to Broadcom See the comment

Judge John DiMotto references Jurors and the Internet on his blog See the blog

Ted Brooks has blogged on Law on Display See the blog post

Kevin Boully has blogged on 16 Simple Rules for Better Jury Selection See the blog

Louisville Courier-Journal has published on article (Taser-death verdict challenged over juror's conduct) which references our Jurors & the Internet article See the Louisville Courier-Journal

Florida Bar Journal has published an article (Reining in Juror Misconduct) citing our Jurors & the Internet article See the Florida Bar Journal article

Howard Wasserman has blogged on Don't Poke Scalia at his Federal Courts blog See the blog

Ric Dexter has commented on What Preparation Does Your Witness Need See the comment

David Badertscher has blogged on Jurors & the Internet at his Criminal Law Library Blog See the blog

Phil Cave has blogged on Live Communication at his blog Court-Martial Trial Practice See the blog

Melissa M. Gomez has blogged on Jury Research for Settlement on her blog at the Legal Intelligencer See the blog

Doug Keene has blogged on this issue of The Jury Expert at his firm blog: The Jury Room See the blog

Martin G. commented on When Jurors Nod See the comment

E. Oliver commented on When Jurors Nod See the comment

Gregory Cusimano commented on Live Communication See the comment

Matt M. commented on Jurors and the Internet See the comment

W. Stuermer commented on Don't Poke Scalia See the comment

David Schwartz commented on Don't Poke Scalia See the comment

Janet commented on Don't Poke Scalia See the comment

Jason Barnes commented on When Jurors Nod See the comment

Jason Barnes commented on Jurors and the Internet See the comment

Thaddeus Hoffmeister blogged on Jurors and the Internet at his blog Juries See the blog

Adam Chandler blogged on Don't Poke Scalia at SCOTUS blog See the blog

Thaddeus Hoffmeister commented on Jurors and the Internet See the comment

Edward Schwartz has blogged on Jury Research for Settlement at the Jury Box Blog See the blog

Sean Overland has blogged on Jury Research for Settlement on his blog at Overland Consulting See the blog

T. Guthell, MD has commented on Jurors and the Internet See the comment

David Badertscher has listed our Table of Contents at his Criminal Law Library Blog See the blog

Sean Overland has blogged on Identifying Leaders See the blog

Edward Schwartz has blogged on Terror Management Theory in the Courtroom See the blog

Joseph C. Markowitz has blogged on Civil Case Mediation See the blog

Phyllis G. Pollack has blogged on Civil Case Mediation See the blog

Victoria Cooke has commented on Graphic Injury Photographs See the comment

Glenn Meyer has commented on Gender and Assault Weapons See the comment

Paul Silver has commented on Civil Case Mediation See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

Arch Stanton comments on Gender and Assault Weapons See the comment

Ted Brooks has blogged on Anthropomorphism in Technical Presentations See the blog post

Karen Franklin has blogged on Hate Crimes & Racial Slurs See the blog post

Matthew McCusker comments on Civil Case Mediation See the comment

benezra1970 comments on Gender and Assault Weapons See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

Wendy Saxon comments on Gender and Assault Weapons See the comment

L.L. Stewart commented on Gender and Assault Weapons See the comment

benezra1970 has commented on Gender and Assault Weapons See the comment

Phil Cave has blogged on Identifying Leaders See the blog post

Doug Keene has blogged on Affirmative Defenses in Product Liability Litigation See the blog post

Vickie Pynchon has commented on Civil Case Mediations See the comment

Cheryl Lubin has commented on Civil Case Mediations See the comment

Anne Reed has blogged on The Jury Expert's September issue See the blog post

Paul Scoptur has blogged on Civil Case Mediations See the blog post

Kevin Boully has blogged on Gender & Assault Weapons See the blog post

Edward Schwartz has blogged on Identifying Leaders See the blog post

Ken Broda-Bahm has blogged on Jury Damage Awards in Recession See the blog post

Rita Handrich has commented on Hate Crimes & Racial Slurs Read the comment

Phillip Miller has blogged about Identifying Leaders See the blog post

Charli Morris comments on Impact of Graphic Injury Photographs Read the comment

Diane Levin has done a blog post on Observations in Civil Mediation See the blog post

Cameron Reed has blogged about Narcissism in Gen Y See the blog post

Stephanie West Allen has done a blog post on Observations in Civil Mediation See the blog post

Edward Schwartz comments on Will It Hurt Me in Court Read the comment

Cheryl Lubin comments on From the Conference Room to the Courtroom Read the comment

Jim Brock comments on Lights, Camera, Action! Read the comment

Jason Barnes comments on Lights, Camera Action! Read the comment

Jason Barnes comments on Jury Damage Awards in Times of Recession Read the comment

Sean Overland comments on the Book Review of The Juror Factor Read the comment

Dennis Elias comments on Jury Damage Awards in Times of Recession Read the comment

Gayle Herde comments on Using Your EAR in Voir Dire Read the comment

Bob Schiffmann comments on What Preparation Does Your Witness Need Read the comment

Jason Barnes comments on What Preparation Does Your Witness Need Read the comment

Alison K. Bennett comments on Using Your EAR in Voir Dire Read the comment

Ted Brooks replies to a comment on Jurors and Technology Read the comment

Jason Barnes comments on Jurors and Technology in Trial Read the comment

Kelley Tobin comments on What Preparation Does Your Witness Need Read the comment

Kacy Miller comments on Jurors and Technology in Trial Read the comment

Charli Morris comments on What Preparation Does Your Witness Need Read the comment

Carol Phillips comments on Gen Y & Narcissism Prevalence Read the comment

Diane Wyzga comments on Juror Stress Read the comment

Edward P. Schwartz comments on Turning Expert Witnesses Into Teachers Read the comment

Phillip Miller comments on Turning Timelines Into Plotlines Read the comment

Jason Barnes comments on Turning Timelines Into Plotlines Read the comment

Phillip Miller comments on Turning Timelines into Plotlines Read the comment

Ric Dexter comments on Turning Timelines Into Plotlines Read the comment

Stacy Fergurson comments on Grime & Punishment Read the comment

Jeri Kagel comments on Turning Timelines Into Plotlines Read the comment

Rita Handrich comments on Grime & Punishment Read the comment

Sean Overland responds to Jeri Kagel's comment Read the response

George Kich comments on Keeping Secrets Read the comment

Kacy Miller responds to comments on Keeping Secrets Read the comment

Laura Rochelois comments on Turning Timelines into Plotlines Read the comment

Sonia Chopra comments on Grime & Punishment Read the comment

Bob Kaufman comments on Injured Body, Injured Mind Read the comment

Steve Laird comments on Injured Body, Injured Mind Read the comment

Steve Laird comments on Keeping Secrets Read the comment

Jeri Kagel comments on Anti-Gay Bias in the Courtroom Read the comment

Dave Zehner comments on Keeping Secrets Read the comment

Sean Overland responds to Pat McEvoy's comment on Anti-Gay Bias in the Courtroom Read the comment

Brian Bornstein responds to Steven Gursten's comment on Injured Body, Injured Mind Read the comment

Jason Barnes responds to Ted Brooks' comment on Turning Timelines into Plotlines Read the comment

Ralph Mongeluzo comments on Turning Timelines into Plotlines Read the comment

Ted Brooks comments on Turning Timelines into Plotlines Read the comment

Diane Wyzga responds to Keeping Secrets Read the comment

Jason Barnes responds to Patrick Norha's comment on Turning Timelines into Plotlines Read the comment

Patrick Norha comments on Turning Timelines into Plotlines Read the comment

Douglas L. Keene comments on Keeping Secrets Read the comment

Bruce A. Beal comments on Keeping Secrets Read the comment

Ken Broda-Bahm comments on Keeping Secrets Read the comment

Pat McEvoy comments on Anti-Gay Bias in the Courtroom Read the comment

Steven Gursten comments on Injured Body, Injured Mind Read the comment

Philip Monte comments on Ethical Issues in Racial Profiling Read the comment

Valerie Hans comments on the book review: The American Jury.
Read the comment
Elaine Lewis comments on The Preparation of Narcissistic Witnesses.
Read the comment

 




Comments 1 | Rating

 

 

Redefining Credibility: Turning Expert Witnesses into Teachers

By Richard Gabriel

 

                              Attorney: “Sir, what is your IQ?”

 

Witness:  Well, I think I can see pretty good.”

 

The New York Times published an article last year, decrying the American advocacy system that creates a partisan atmosphere for expert witnesses as opposed to more neutral use of experts in European and Australian courts. In the recent Phillip Spector trial, a prosecutor’s closing remarks about “pay to say” expert witnesses for the defense could serve to undercut experts that his own and other local law enforcement offices have used in the past or may use in the future. Other recent articles in national newspapers and editorials echo the general public’s skepticism about the objectivity of expert witnesses. Assuming that the expert can pass the Frye, Daubert and Kumho Tire tests, judges and juries routinely dismiss expert testimony for credibility concerns, incomprehensibility, or simply by being cancelled by another expert’s testimony. All of these issues make for difficult testifying conditions for an expert witness, to say the least.

This leads to a number of important questions for the attorney and the expert in presenting testimony in trial:

·      What exactly is credibility?

·      Is my expert an advocate for me?

·      How objective do I really want my expert to be?

·      How broad or narrow should be the scope of their testimony and their expertise?

·      In the overall case, what is the expert being used for?

·      How do we best communicate the expert’s background, their methodology, their findings and conclusions?

Normally, we spend a great deal of time discussing expert credibility in terms of how an expert’s background education, training, and accomplishments compare with opposing experts, methodological concerns of how they arrived at their opinions, their “objectivity”, how much money they were paid or their demeanor while testifying.  While all of these factors play a role in juror evaluations of an expert, this article will focus on one primary area of improving expert witness credibility: improving how an expert teaches the fact finder.

 

 

IMPROVING HOW THE EXPERT TEACHES THE FACT FINDER

In speaking with jurors in post-trial interviews and participants in mock trial debriefings, some of the negative terms that I have heard jurors use to describe expert witness testimony fall into these main categories:

·      The Ivory Tower: “arrogant”, “condescending

·      The Swordsman: “combative”, “defensive”,  “hostile”, “nitpicky”

·      The Waffler: “uncertain”, “inconsistent”                       

·      The Automaton: “stiff”, “robotic”, “confusing”, “unintelligible”           

·      The Salesman: “overzealous”, “slick”

Under all of these negative terms lies one fundamental problem: the lawyer and the witness did not have the intention of truly communicating with today’s jury. Let’s face it, jurors these days are more concerned with collapsing careers and 401K’s than whether an expert went to Cornell or Dartmouth or whether their article on “Transapical Aortic Occlusion” was peer reviewed.

Jurors are their own experts these days. They Google, they Twitter, they watch the Learning Channel and CSI. They are bombarded by opinions of media pundits, bloggers and comment themselves on news stories they read on the Internet. They work long hours, have long commutes, and alternate between shuttling their kids to soccer and piano lessons and helping them with hours of homework every night. Yet we expect them to patiently absorb hours of testimony about Securitized Credit Enhancement with rapt attention.

The standard approach in direct examination is to take the expert through their education and professional accomplishments, thus establishing their credibility. After this has been established, the attorney and the expert then describe the expert’s fundamental opinions, justifying their methodology with some interspersed background on the field of expertise or standards for their practice, while criticizing the conclusions of the opposing experts.

Given our harried and demanding juror described above, they have some inherent resistance to the structure of this testimony. First, jurors have some inherent skepticism about the objectivity of paid opinions. Second, although degrees, publications, and general achievements in their field of expertise are important in the selection of experts, they are not the primary credibility characteristics for jurors. Third, jurors struggle with the density of medical, engineering and other technical information, conflicting case stories, and complex legal instructions.

In post-trial interviews and jury research projects that I have conducted across the country over the years, three main characteristics are cited most frequently by jurors in their positive reviews of expert’s testimony:

1) Relevant experience;

2) Ability to use a recognizable methodology; and most importantly,

3) Ability to teach that methodology and communicate the resulting conclusions.

1.     Relevant Experience: Attitude is Everything

 

            A jury has sat through a complex patent trial on telecommunications equipment and it is finally time for the damages expert to get up and tell the jury what it is all worth. But before the dissertation about royalties formulas have left his or her lips, a question jumps into the juror’s thought balloon, “What makes him such an expert in this?” and then, “What are these numbers based on and what do they mean.”  It is in answering these basic questions that a damages expert succeeds or fails.  

WHAT MAKES AN EXPERT'S EXPERIENCE RELEVANT TO JURORS?

           

            Let’s face it, math was not the favorite subject of most jurors in school. Because jurors are looking for something familiar to make sense of complicated damages testimony, any practical work experience that mirrors the damages analysis helps them to understand that the expert has personal and practical experience in his or her expertise, as opposed to a purely theoretical or academic expertise. For example, if an economic expert’s father ran a grocery store, she can talk about watching him balance the books and keep track of inventory. If an expert worked just out of college in a manufacturing plant for awhile, jurors may feel that he has an on-the-ground appreciation for the direct issues facing a manufacturer in a case involving packaging equipment.  

            Additionally, if the expert has participated in any study or research project or has personal expertise in an area that amplifies their damages opinions, this can help to distinguish them from the opposing expert. For instance, if a damages expert has a business valuation background, jurors may find that this gives the expert a more global picture on the impact of contractual and business claim rather than a pure accounting perspective.

            By talking to the expert about their personal background, experiences, and course of study, it allows trial counsel to help the expert amplify and create jury meaning to their testimony. In short, jurors want to know that the expert is engaged in more than a dry intellectual formulaic task. They want to know that the expert has a personal interest in the subject matter and has participated in the field in various forms over their career.

2.     Recognizable Methodology: Can the Jury Really Understand?

 

Attorney:  “Doctor, as a result of your examination of the plaintiff, is the young lady pregnant?”

 

Witness:  The young lady is pregnant – but not as a result of my examination.”

 

            Although jurors play a largely passive role during a trial by sitting and listening, most research suggests that we all retain information better when we interact with that information. One of the best ways to get jurors to interact with the expert’s testimony is to make his or her methodology both easy to understand and easy to use. By walking the jurors through a point-by-point re-enactment of the expert’s methodology, it allows the jurors to see what the expert is seeing as they are analyzing the subject matter. In essence, you are making the juror the expert. This transference is important because you need them not only to understand your expert but to actually stand in or become the expert in deliberations. As you are walking the expert through the steps of their methodology, it is also important to ask them about what they were thinking as they looked at the data or results that they were seeing. For example, by allowing them to describe their impressions and reactions as they started going through their damages calculations or as they read the opposing expert’s report, it allows the jury to understand how the expert formed their final conclusions.

            The second point in conveying a recognizable methodology to jurors is creating familiar examples and analogies for the jury. Whether invoking the often used “recipe” analogy for a patent, talking about lottery odds, or speaking about home or car loans, jurors use analogies to understand the methods and reasoning used by experts because these anecdotes touch on an experience the jurors themselves have had. The greater the familiarity, the greater the acceptance.

3.  Effective Teaching and Communicate Skills

 

Attorney:  “Is your appearance this morning pursuant to a deposition notice which I sent to your attorney?”

 

Witness:  No – this is how I usually dress when I go to work.”

 

            In all of our studies of reactions to expert witness testimony, the one quality that determines witness effectiveness is the strength of the expert’s communication’s skills. Again, we measure effectiveness by how much of the expert’s testimony is understood, retained, and persuasively used by jurors in deliberation. For our purposes, we will look at discreet behaviors to analyze what makes a good teacher and good communicator.

What Makes a Good Teacher?

            First and foremost, most jurors have experienced at least one good teacher in their lives. Most good teachers have an innate curiosity about the way the world works and come to their subject matter with the spirit of inquiry.  It is in this spirit that a good teacher conveys mastery over their subject matter by having a comprehensive understanding of the field they are in. This understanding allows them to anticipate opposing expert’s methods and the cross-examination they will face in explaining their own methods and conclusion. This mastery means not only that the expert knows the literature of current research, trends, and clinical practice in their field, but is also familiar with other alternative, even unorthodox, methods used in the field. Given that jurors are novices in stem cell technology, securities, manufacturing process, insurance contracts, and royalty formulas, it is important that the expert not be too dismissive of what he or she deems to be a ridiculous or even fictitious method of the opposing expert. By explaining carefully why the field has undertaken certain recognized practices, this allows the jury to understand the reasoning behind the experts methodology. Then they can show the inaccuracies or false assumptions that underlie the opposing expert’s methods.

            A good teacher understands that a student needs context in order to appreciate the significance of the opinion or finding. In an antitrust case involving Hatch Waxman allegations, an expert may testify about whether a pharmaceutical company’s conduct constituted anti-competitive behavior. However, without appreciating the guiding principles and intentions behind the Hatch-Waxman legislation, jurors will easily refer to their own experience and understanding of competitive business conduct, perhaps courtesy of Donald Trump’s The Apprentice. Therefore, if allowed by the Court, they need to preface any conclusions about the business conduct with a basic tutorial about Hatch-Waxman.

            More importantly, a good teacher knows how to set the rules. The more complex the case, the more jurors (and judges) look to the expert to give them a framework for the case. Experts who can clearly articulate and establish the industry norms gain a credibility advantage and position the case more advantageously. For example, the first expert who can set the “standard of care” in a medical negligence case gains the upper hand. By testifying to even the most elementary standards of documenting a medical file, the expert essentially become the voice of authority and establishes the stone tablet commandments by which all conduct is measured.

Good teachers also anticipate questions that a student may have about the subject matter. In this mindset, they are always stepping into their audience’s shoes and saying to themselves, “If I were listening to this for the first time, what questions would I have?” They then make sure they answer those questions, no matter how basic or obvious they seem.

Finally, a good teacher appreciates that different students have different learning styles. Some are visual learners who need a great deal of graphic or demonstrative evidence to understand the points being made. Some students are auditory learners who listen carefully to material, need a great of data and like to compare and contrast differing opinions. Some students are kinesthetic learners who like to use models, hold documents in their hands, and get a hands-on feel for the subjects they are learning about.  An expert can appreciate these and other styles and create a mixture of tools to convey their information. Some will stand up (if allowed) and walk jurors through a white board calculation of damages, some use PowerPoint to illustrate their process, some will use models of the product in question. If the expert can use a combination of these methods, it will break up potentially hours (if not days) of static, talking-head testimony. Again, an expert as a good teacher recognizes when they have the attention of their audience. By using multiple media to convey their message, the expert creates more inherent interest in their testimony and easier access for the juror.

What Makes a Good Communicator?

            Talking about good communication is like talking about good art or good music. Nobody knows exactly what it is but they know it when they see it. However, there are some behavioral and personality components that many excellent presenters employ to effectively get their message across to their audience.

            First, good communicators (like good teachers) always have a passion for the subject matter they are presenting. Aside from a purely professional or academic interest, experts who resonate with jurors seem to have a personal connection that  drives them to a particular level of excellence in their chosen field. Second, effective experts, like good lawyers, have the ability to tell a good story. Good storytellers have an appreciation for narration. That is, they know whether their audience has enough information to understand and appreciate their message without getting confused or distracted from the central theme and through-line of their story. Good storytellers also know that even the driest subjects can be made interesting by highlighting the conflict, the characters, the action, or the environment within the story.

            Experts who have well-tuned communication skills have the ability to break down complex subjects or concepts into simple, understandable language. This can be called the Teen Test. Unconsciously, these experts do an immediate translation of complicated concepts as if they were speaking to a group of teenagers. Needless to say, this should not be done in a condescending manner. However, witnesses will always gain credibility points if the jury feels that the witness is truly trying to help them understand the subject matter.

             Similarly, experts who have excellent communications skills have the ability to organize their material for optimal jury or judicial retention. As an exercise, have the expert list for you the three to five major conclusions in their report. Although they may assure you that they have 17 main points, many of those points can be grouped under one of those three to five major topic headings.  We call this the “journalism” approach and it sometimes runs counterintuitive to the way an expert organizes his or her material. First, have the expert describe what the one line headline is to their story on this major point. Then, have them describe for you the sub-headline. Then, the first paragraph on their major point should summarize what they have to say about the point. Then, the body of the story can create increased detail, research, and history of the opinion. This journalistic approach takes advantage of that golden “primacy” time that we have spoken so much about over the years – that people listen best to what is presented first.

This method of organization is useful to the jury because it allows them to better take and organize their notes of the expert’s testimony and better use that information in deliberations. When we test this method of organizing an expert’s testimony in a mock trial, we look for jurors in deliberation saying, “Expert Y had three main points on this issue. They were…”. 

Finally, this method assists the expert in organizing her thoughts for cross-examination.  Because, no matter how vociferously they are attacked about their methods or conclusions, she can still come back to her three to five major points.

            As described above, a good communicator is also a good teacher. As such, the expert knows the juror will always gravitate toward boredom. No matter how fascinating the expert finds regression analysis, jurors will always be pulled toward that glazed expression that says, “I wonder what I should have for dinner tonight?”

            To anticipate this natural state, the good communicator uses as much media variety as possible to communicate their conclusions. This means more than just good visuals. Where allowed, an expert should try and use a visual presentation system (Sanction, Trial Pro, Trial Director etc.), use blowups or magnetic boards, draw on a white board or flip chart, and create live demonstrations to create interest in their presentation. The more variety, the more jurors will pay attention.  These visuals should seek to visually recreate the verbal testimony of the expert. As a matter of fact, we sometimes go through a “storyboarding” exercise taken directly from the film industry. That is, we sit down and create a series of images that tells the expert’s story. Another exercise is to have the expert identify the three most important points in his or her testimony. We then design a graphic (not a bullet point chart) to accompany those main points.

            Similarly, a good communicator uses vocal variety to convey interest in their message. Changes in pitch, intonation, emphasis, loudness, and pace of speaking all communicate nonverbally that there is something new being communicated. It nonverbally creates punctuation and accentuates the speaker’s content.

            Nonverbally, most experts have learned how to make eye contact with jurors during their testimony. However, this can be overdone. Jurors have sometimes reported  in post-trial interviews that the expert seemed to be pushing too hard by automatically turning to the jury after every question. It will seem more natural for the expert to respond to the attorney on shorter, simpler responses and include the jury in the longer responses. This will make the testimony seem less contrived. Finally, even if a witness is confined to the witness box in Federal Court, use of posture and gesture can also help to underscore the important points in an expert’s testimony.

            Again, good communication is in the eye of the beholder. However, jurors respond positively to experts who convey, through their attitude and demeanor, a certain confidence, quiet strength of conviction, humility, eloquence, grace, and good nature. 

Expert Testimony Sequence

 

            Jurors have a short attention window during which an expert needs to establish rapport and credibility to convey their main points. Again, if we were to look at the juror’s thought balloon, it would contain questions like, “Who is this guy? What is he talking about? And what does this have to do with the rest of the trial?”.  And although it is necessary to qualify your expert, we advise the following sequence in an expert’s testimony in order to optimize jurors’ short attention window during an expert’s testimony. 

1.     Short background of the expert. As previously described, this should not only include academic or professional accomplishments and designations but personal history that can relate to specific jurors and the individual issues in the case. This background should also include a question about why the expert likes doing the work she does and what her main focus has been in her career.

2.     Briefly define the expert’s role and what she was retained to do in the case.

3.     Summarize the expert’s conclusions.

4.     Go through the methodology and approach employed by the expert to arrive at their conclusions. This can also include a critique of opposing expert’s methods, conclusions, and testimony. Although the expert might not respect the opposing expert professionally, given that the  jurors do not have a background in the field, it is always safer for the expert to acknowledge the opposing expert’s view but still strongly critique his methodology and conclusions.

5.     Periodically intersperse the methodology and approach testimony with professional experience, research, publications, and accomplishments.

6.     If possible, summarize conclusions again.

Using the Dynamic Tension in Expert Testimony

 “He was just open and honest. He would tell the defense attorney that he was wrong and that the plaintiff could be right in certain spots.  They were just more credible than the plaintiff experts.  The plaintiff experts seemed like they’d say what you want to hear and when the defense got to them, they’d fall apart.”

- Mock juror comment on a defense medical expert

An attorney wants to retain a product liability expert to support her manufacturing defect case. The expert wants to be retained to testify and wants to be called back to testify in other cases. He wants to be cooperative but is feeling uncomfortable with some of the claims the attorney is asking him to support. He pushes back in a couple of preparation sessions, telling the attorney he is not willing to go that far in his testimony. While this may be difficult for the attorney in making a substantive record for her case, this tension can actually be a beneficial source of credibility for both the witness and the attorney in this case.

As we have discussed, jurors are already primed to be suspicious about the lack of objectivity of an expert witness. If jurors perceive that there is some resistance between both the attorney and the witness, they will have harder time believing that the expert is just a “paid mouthpiece” for the attorney. We can accomplish this through two very simple methods:. First, the attorney and the witness can agree on areas where they disagree. Obviously, these should not be areas that are germane to the primary issues in the case. Jurors know that the lawyer is an advocate. They can safely push the envelope in a safe subject area to allow the witness to reign in the attorney and say, “No, I don’t think I would go that far. Here is what I think is a more accurate scenario.” The second area is for the attorney to step into opposing counsel’s shoes and “cross-examine” his own witness to preempt an anticipated attack. This allows the attorney to play the skeptic (something the jurors are already doing) and to test the soundness and objectivity of the witness. This sometimes leaves opposing counsel with very little fodder for their cross-examination. Both of these examination methods reinforce the independence of the attorney and the expert. 

In planning expert testimony, careful consideration should be given to how different courts deal with experts. Some courts have started having experts testify back to back as opposed to testifying in the case for which they were retained. This requires different preparation and planning. There is even some initial discussion about the Courts using a method from Australia with the unfortunate name of “hot tubbing” where experts testify together at trial, ask each other questions, respond to questions from the judge and the lawyers, and find agreement while clarifying the issues.  While procedurally unprecedented, this method may gain some support if the courts feel it will improve the clarity and objectivity of the expert testimony in a case.

Conclusion

            Jurors do have an innate curiosity. They have a lot of time invested in the case and they want to learn something during a trial. It is important for the expert to understand the innate skepticism and inherent boredom of jurors in order to become their best teacher in the subject matter. By being creative in structuring and conveying the substance of the expert’s testimony, the expert becomes the translator for the jury in their journey into a foreign land. The expert allows them to learn, retain, and use their testimony to become your best advocates in deliberation. By doing this, they become your experts for other jurors and help to teach and communicate your best message. 

 

Richard Gabriel is President of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago & San Francisco. He is co-author of Jury Selection: Strategy & Sciencepublished by Thomson-West and a regular columnist on trial strategy for Lawyers USA.

 Citation for this article: The Jury Expert, 2009, 21(3), 85-92.


Full Issue   Full Article   Send to a Friend   Rate this article:


Edward P. Schwartz wrote:
May-19-2009
Richard,
This is a very good article. I am constantly harping on my clients about the importance of experts as teachers. Now, I can just hand them your article! I tell witnesses to imagine that the jury box is filled with College Freshmen: largely ignorant, somewhat interested, and probably sleep deprived. Plus, their course evaluation will determine next year's salary!

I wonder how much resistance you have encountered from attorneys with respect to the "dynamic tension" suggestion. ...[More]

Comment on this article:


(Optional. We will not publish your email address here or elsewhere.)


Maximum 5,000 characters. Character count: 0

When you submit this message, you give The Jury Expert permission to publish it on the web. As this is a professional journal, editors will publish comments that are courteous and respectful (even when in disagreement). Thanks for participating in the TJE community!


Publication Information

The Jury Expert is now on Twitter (@thejuryexpert)! Follow us for daily news relevant to improving litigation advocacy, understanding jury behavior, resources that aid your practice, and sometimes, stuff that's just plain fun.
http://www.twitter.com/thejuryexpert

The Jury Expert [ISSN: 1943-2208] is published bimonthly by the:
American Society of Trial Consultants
1941 Greenspring Drive
Timonium, MD 21093
Phone: (410) 560-7949
Fax: (410) 560-2563
http://www.astcweb.org/

Editors of The Jury Expert
Rita R. Handrich, PhD — Editor

Kevin R. Boully, PhD — Associate Editor
 

The Jury Expert logo was designed in 2008 by:
Vince Plunkett of Persuasium Consulting

The publisher of The Jury Expert is not engaged in rendering legal, accounting, or other professional service. The accuracy of the content of articles included in The Jury Expert is the sole responsibility of the authors, not of the publication. The publisher makes no warranty regarding the accuracy, integrity, or continued validity of the facts, allegations or legal authorities contained in any public record documents provided herein. Authors retain copyright of their written work. Author supplied graphics which illustrate technology or design ideas are considered the intellectual property of those authors. The Jury Expert itself is copyrighted by the American Society of Trial Consultants (ASTC).