Fury Bailey - Personal Injury - Wrongful Death Attorneys

EFFECTIVE USE OF THE EXPERT WITNESSES AT TRIAL

by William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

"THE USUAL TYRANNY OF EXPERTS"

Recently, I passed a court reporter in the hallway who I knew had been assigned to a several week civil case. When I asked how it was going, he paused, rolled his eyes wearily and sighed, “The usual tyranny of experts.” Tyranny or not, the selection and use of expert witnesses is the principal factor that determines whether a trial is won or lost. Even flawless, inspired trial advocacy technique by the lawyer will not redeem weaknesses in the expert witness testimony. It is well understood by all participants in our justice system that a case is only as good as the experts behind it. Recall your own sense of triumph after you've met and talked with a promising new expert who can effectively address key issues in one of your ongoing cases. How many times have you exulted with a partner or colleague in these circumstances, “You wouldn't believe this expert I just found for my case. She's absolutely incredible. . . ”

In many ways, the trial lawyer is like a film producer who tries to combine a great script with the most bankable movie stars, writers and production people in order to ensure the success of a film. Trial lawyers are expected to search relentlessly for just the right combination of experts and evidence to carry the message to the jury, persuading them to enter a verdict in our client's favor.

Experts Win Cases, Not Oratory

Early on in my career, I saw a compelling demonstration of the importance of experts. A lawyer whose forensic and advocacy skills were superior to the opponent's nonetheless lost a case that I watched as an observer. The reason? The lawyer's expert witnesses weren't as good as his opponent's. The jury took their charge at face value to decide the case only on the evidence, recognizing that “whatever the lawyers say or do is not evidence.” After this experience I abandoned my media created delusion that spellbinding, table thumping oratory by a lawyer was what wins lawsuits. From the standpoint of results obtained, the selection, recruitment and grooming of expert witnesses behind the scenes was far more important. The purpose of this article is to describe how expert witnesses can be used more effectively in the courtroom to communicate with and persuade the jury.

Experts In The Sound Bite Era

The first thing that every lawyer has to realize in using expert witnesses is that we are living in the sound bite era. For at least the last decade, the news media has opted for the principle of shorter is better when it comes to reporting events in the news. It is not at all unusual to see a politician's 30 minute to 60 minute speech repeated on the nightly news in a five second sound bite. In that news stories rarely go beyond one and a half minutes, extended oratorical flourishes simply do not fit the pace of a news program.

At this point, it is meaningless to get into the chicken or egg problem of whether the news media shortened the public's attention span through generous use of sound bites or whether they merely responded to something that was already there. Either way, the shrinking attention span of the public is a fact of life in the last decade of the twentieth century. Everywhere you look, consumers of information are being catered to by being given abbreviated, concentrated messages that don't require much sifting to get to the point. Graphic images and symbols have also been developed to be instantly understandable, crossing barriers of language and education.

Before any of us get too terribly sanctimonious about the decline of literacy in America as reflected by a short attention span, ask yourself, “When is the last time I heard a long speech that I really liked?” Although we lawyers have conditioned ourselves to put up with boredom as an occupational hazard in such delights as all day depositions, buried underneath we too have the same instant gratification expectations of the sound bite era.

Holding Jurors' Attention Is An Incremental Process

In this era of sound bites and short attention spans, it is essential that you bring rapid pace to your presentation of an expert witness' testimony. Even though a jury is in one sense a captive audience and cannot “change the channel” as they sit in the jury box, they can mentally tune out your expert in short order.

The initial attention span of a juror in the 1990s is 30 seconds or less. In this very brief amount of time, the juror will make a first assessment of whether anything said will be of value to them. The beginning of an expert's testimony is critical for this reason. If you are able to pass this first 30 second hurdle and convince the jurors that your expert is worth listening to, they will then “buy into” another time increment of perhaps one to one and a half minutes. In this second period of active listening, they will continue to judge whether or not there is anything of value to them in the presentation. You and each of your experts will have to continue to convince the audience on the jury panel to keep paying close attention to the testimony.

In essence, 45 minutes of an expert's testimony in court may be broken down into as many as 20 or 30 segments of attention in the minds of the jurors. The jurors continually reexamine whether or not they are going to continue to pay attention to an expert. If the structure and pace of the expert's testimony does not hold sufficient promise of a reward to the listener, you will lose all but the most dutiful jurors. Just as your own mind wandered quickly in law school when you had a boring professor, jurors will listen only so long as they get value from what you or your expert have to say. Ask yourself this question, how many of these jurors would stay tuned if this expert appeared on their TV screen at home? If your answer is uncertain, you'd better revamp the expert's presentation.

Use Primacy And Recency To Orchestrate The Testimony

When structuring the testimony of your expert, take into account the principles of primacy and recency. The jury will best remember what your expert says first and last, what is in the middle tends to get lost. The beginning is particularly important, because as we have just discussed, the jury makes a preliminary determination in the first 30 seconds whether they are going to listen to the expert at all. Therefore, the beginning of the testimony is critical for two reasons - it determines whether the jury will buy in and pay attention at all and whatever is said will be best remembered later back in the jury room.

Don't Overdo Qualifications

Most lawyers squander the golden opportunity of the first five minutes of an expert's testimony with a leaden recitation of qualifications. Lawyers are resume freaks and tend to give paper accomplishments much more weight than the average lay person would. We lawyers are very competitive souls who take great pride in our accomplishments. We scan one another's listings in Martindale Hubbell to see how we stack up against one another.

However, most jurors could care less after they find out the fine points of preparatory training in the field in which the expert is certified - whether it be engineer, doctor or accident reconstructionist. I recall vividly an occupational disease case I tried in which the defense brought in a preeminent physician author of a leading medical textbook. The defense could not resist trotting out the qualifications of this doctor in excruciating detail, taking the better part of an hour. Given that this expert was an emeritus figure in his field, there was no shortage of material to draw on. However, the lawyer presenting this witness neglected to consider the fact that all of this resume detail would be terribly boring to the jury. My worry about this expert demolishing our case passed when, after twenty minutes, I saw one juror roll his eyes, lean over and whisper loudly to the juror sitting next to him, “This guy is a real killer, I wonder how much longer he is going to drone on.” By the end of the “hour of qualifications,” the jury had long ago decided to tune out every word this medical expert had to say.

The average juror only wants to know what field the expert represents and does he or she have a particular license in that area. If the expert is on the faculty of the University or has headed up a national commission of some sort in the field, that information would probably impress a juror as well. Always be on the lookout for a human interest, “ People magazine” type story buried within an expert's resume. For example, a surgeon I presented as an expert in a product liability case spent five years in a clinic in Africa after his medical school training. This was the only thing I touched upon in presenting this surgeon's qualifications, which allowed the jury to see him as a devoted humanitarian. Another surgeon I called as an expert in a burn case described the wrenching experiences he went through as an army surgeon in Viet Nam , which cause him to dedicate his career to burn victims. This human interest approach allowed both of these experts to quickly pass the first 30 second “screening” by the jurors mentioned previously. The respective juries bonded to these experts immediately and believed every word of their testimony. The underlying principle at work is that even the strongest resume in the world cannot redeem a boring, uninspired or otherwise tepid performance from the witness stand. Demeanor and human interest are much more important than the minute details of an expert's resume.

How Your Expert Looks Affects Their Credibility

There is also a “central casting” aspect to expert witnesses which must be taken into account. It is a sad but true principle of human nature that how a person looks is an important factor in determining how much credibility is given to what they say. Someone who “looks the part” they are assigned to play as an expert witness stands a greater change of persuading the jury to their point of view.

A case in point was an asbestos product case of mine where Dr. G. S. was our medical expert witness. The defense had little respect for Dr. G. S. because from a scientific point of view, his medical analysis of the case could be challenged. Yet, the defense failed to take into account the fact that this doctor met the jurors' expectations of what a credible physician/expert should look like. He was tall and good looking with a full mane of white hair and had a British accent. He also had a droll, dry, self-deprecating wit which endeared him further to the jurors. He did not place himself above them. The defense lawyer went after this doctor hammer and tongs in cross examination with a five foot high stack of medical textbooks, but none of this made any impression on the jurors. They liked this witness, he was seemingly articulate and they judged what he was saying to be credible, even though the defense made a spirited argument that Dr. G. S. was out of step with the mainstream of the medical community.

On the reverse side of the coin, the defense in that same asbestos product liability case brought in Dr. D. S., who was on a medical school faculty, with many publications and a current grasp of medical research. However, this doctor suffered from several handicaps, the worst of which was he talked down to the jurors in an obvious, condescending manner, telling them at one point that he did not believe that lay people were qualified to make medical decisions such as they were being asked to do in the particular case. This rankled the jurors to no end, who had taken an oath to do their best to listen to the evidence and render a just verdict. This doctor also suffered from looking too much like the prototypical egghead, mad scientist, with a high, square forehead, no sense of humor and square, black Clark Kent type glasses with thick lenses. Dr. D. S. may have been the best scientist in the narrow, technical sense of the word, but was routed badly in the face off against Dr. G. S., his smooth, silver-haired counterpart on the plaintiff's side.

The Right Pace - Move It Along Smoothly

Once the central casting aspect to expert witness selection is taken care of, the next critical issue for the trial lawyer to consider is the pace at which the expert testimony is presented. Law school has permanently warped our sensibilities and may even have damaged our brains as far as awareness of the importance of pace is concerned. The Socratic method teaches us to speak in obscure riddles rather than direct realities.

However, jurors demand that we get to the point and that we get to it quickly. They are not participants in the court process on a daily basis, but only brief interlopers - two week travelers who will be back to their regular lives in short order. You must cater to their expectation, one of which is that you will be presenting testimony like they have seen on TV.

In the long running but now defunct television show “L.A. Law,” expert testimony in the courtroom scenes took no longer than two minutes for both direct and cross examination. It is amazing how much can be communicated in just two minutes. Expert testimony that drags on for hours is completely unacceptable to the average juror. One of your most important duties as a trial lawyer is to distill out those key points upon which the expert testimony depends and hit those hard and get out quickly. ER 705 has liberated the trial lawyer from the drudgery of putting in every detail which supports the expert's opinion. Yet, many trial lawyers act as though that evidentiary rule was not there, slogging through every minute liquid detail filling the swamp.

Editing - Leave Out The Weaker Evidence

The trial advocate must realize that persuasiveness is a function of editorial judgment - what details you leave in and what details you leave out. Adding weak or barely relevant evidence to your case for bulk value does not make your case stronger. Rather, like corrosive acid, it eats at the power of the persuasive evidence and dilutes the effect of your stronger evidence upon the jurors. In fact, some studies show that the presence of weak evidence causes the jurors to doubt the value of stronger evidence because they figure that something must be wrong with that stronger evidence, or the lawyer wouldn't be putting in all of this “filler.”

Doctors and other experts who are college teachers tend to be better at explaining things to the jury. They have learned that the mark of a good teacher is to get the point across in the fewest possible words. In its most essential form, expert witness testimony is just another form classroom teaching, only the location is different - the courtroom.

In many ways, the lawyer must do with the expert the same sort of streamlining process that publications like Reader's Digest or USA Today do to news and magazine articles. I was walking back recently from lunch with another lawyer who glanced at the USA Today headlines through the plexiglass window in the dispensing machine. He remarked, “Good old USA Today , you don't even have to buy the newspaper, one look through the window gives you the drift of the entire story.” In the same way, the Reader's Digest is the most widely read magazine in the world because it has chiseled the less interesting parts of the articles out in the editing process and only has left what the readers will be interested in. You must do the same thing with the testimony of your expert witnesses.

Scripting The Expert's Testimony

The thoughtful advocate spends a good deal of determining the most powerful way of presenting an expert's testimony. The lawyer will meet with the expert on a number of occasions and extract the most essential parts of the expert's testimony, presenting only those to the jury. When the lawyer and the expert have come up with their final version of the expert's presentation to the jury, it is then useful to videotape that and show it to a focus group in a mock trial setting. Ask the jurors in the mock trial what parts of the expert's testimony they found persuasive and what parts were difficult for them to accept. In this way, the “test marketing” of the expert's opinions can give important feedback on how likely they are to be accepted by a lay jury. In this manner, you can isolate the “hot buttons” that will have maximum juror appeal.

Visualize Everything

In addition to having a rapid, streamlined pace by your expert witnesses, it is also essential to visualize all of the information contained within their testimony. I always operated under the assumption that if any expert does not show and tell the jury, testimony will not be persuasive and will not be remembered back in the jury room. There is nothing particularly revolutionary about this. Going back to our earliest experiences in grade school, there was a reason we were surrounded by chalk boards which our better teachers used frequently to write down information. Sound is not an effective, efficient medium for the transmission of detailed information. Our mind glazes over when a speaker merely bombards us with one statistic after another. Rather, the use of sound is to bond with the audience, to motivate, inspire and galvanize them. Detailed information in an analysis is best transmitted through sight and presentation in a visual medium, not in an auditory fashion. If an expert merely scalds the ears of the jurors with a large volume of talk and no use of visual aids, the chances are the information will not be remembered.

Watch a TV news show and see how long the commentator speaks without a visual aid appearing over their shoulder on the screen. It is usually no more than three or four seconds. The reason for this is that talking heads are boring, whether they are on the TV screen or live. Remember those terrible early days of public television where talking heads were ubiquitous
and the programs were full of dry, academic figures endlessly spouting even drier academic information? Talking heads are a turn off, whether on a PBS show or an expert on the stand in your case.

Predominance Of Visual Imagery In The 1990s

Jurors are much more visually sophisticated in the 1990s then at any other prior time in American history. Photographs, television and films have taken a predominant role in popular culture. Many social commentators have bemoaned the fact that fewer and fewer Americans read on a regular basis. In this vein, Paul Connolly, the director of the Institute for Writing and Thinking has observed:

We have become such a sophisticated culture that we are intolerant of a 400 page book, and want forms of communication that are more efficient and immediate. After 500 years, we may have outgrown Gutenberg.

Look at the instrument panel on your car and you will see proof of how visual symbols are now being used in place of words to tell people what to do. Even for people without artistic skills, computer graphics and video cameras let people express things visually that could only be done with words ten years ago. As trial lawyers, we figure out how to harness the trends in modern society and popular culture to persuade and communicate with our jurors.

A fundamental assumption of the advertising industry, which spends billions of dollars to figure out what the public wants, is that visual images are the most effective way of persuading other human beings. Advertisers assume that human beings are filled with a variety of unfilled urges and motives which swirl around in their minds, seeking resolution. Advertisers seek to latch on to one or more of these lurking subconscious drives and go for the soft underbelly of the American psyche where their messages have the greatest likelihood of getting by the consumers' defenses. Communication guru Marshall McLuhan has stated:

Gouging away at the surface of public sales resistance, the ad men are constantly breaking through into the Alice in Wonderland territory behind the looking glass, which is the world of subrational impulses and appetites.

The most effective way for advertisements to break through the defenses of the consumers is to use specially selected images designed to stimulate the “subrational impulses and appetites” of the general public. For most ads, the emotional appeal and the greatest potential for persuasiveness occurs in the visual component of the advertisement. This is done because visual communication is better suited to the more primal levels of the brain. The appropriate visual image then connects the product in the ad with the promise of gratification of the summoned motive. The visual image is the stealth bomber seeking to invade the mental territory of the consumer.

In the context of the courtroom, the trial lawyer must also select images which will deeply penetrate the subconscious minds of the jury, effectively carrying the message of the expert witness along with it. Prior to the expert ever appearing in the courtroom, the lawyer should have spent hours with the expert discussing available material to drive the necessary points home.

The Search For Compelling Visual Evidence

To Supplement Expert Testimony

At my first meeting with any given expert, I will go to their office and after we have discussed the important parts of the case, ask them to look through all the books and materials available in their office to see what illustrations, drawings or photographs are available to describe the processes at issue in the case. For example, when I am visiting a surgeon who performed a cervical fusion, I will ask him to pull out all of his textbooks that illustrate the surgical techniques used and the anatomical defects which made the surgery necessary. If another expert is talking about any kind of statistical proof, I will have a graphic artist reduce the expert's foundation information to a striking, colorful graph. I will also search out all possible sources of other visual evidence in books and publications within the field.

By the time any expert I use is ready to step in the courtroom, I will have models, diagrams, photographs and videotapes available to illustrate every portion of that expert's testimony. Like the TV news, I do not want more than a few seconds of “talking head time” to go by before some kind of visual evidence is used to illustrate points in the testimony.

Unsell The Opponent's Expert As You Sell Your Own

Don't forget about the effect of point-counterpoint in presenting an expert. Never let your expert leave the stand without having her comment on the opinions offered by the other side's expert who will testify on the same subject. Many times, you can score as many points by the effectiveness of your attacks on the other side's case as you can by affirmatively presenting the strengths of your own case. George Bush proved this in 1988 when under the guidance of the late Lee Atwater, he sought to “strip the bark off' Michael Dukakis by a strong negative campaign. The repeated negative attacks on Dukakis caused George Bush's standing in the polls to rise as much or more as a positive presentation of his own agenda.

If your expert is credible to the jury, her analysis of why the other side's expert should not be believed helps to set a negative impression in place before the other expert has ever had a chance to present their views. Don't pass up this opportunity. If an expert says nothing to criticize the credibility of the opposition's expert in the same field, the jury may conclude that you are conceding the reasonableness of the opponent's testimony.

Conclusion

In a trial of the usual civil case, winning or losing depends on the persuasiveness of the experts that you call. Giving careful thought to dramatizing the testimony of the experts through rapid pace and effective visuals goes a long way toward ensuring that you will come out on the winning side. If you win the battle of the experts, you are also likely to win the war.

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