In 1996, I published Taking the Stand, Tips for the Expert Witness.  It was written after years of preparing expert witnesses for trial and after conducting many jury research projects and post-trial interviews with jurors.  This series examines the same concepts, but with the attorney in mind, who will find most of the tips for effective expert witnessing applies to fact witnesses as well.

Introduction

One of the most enjoyable aspects of working as a trial consultant has been the knowledge gained from preparing expert witnesses.  In my years in this field (24 so far), I’ve learned from experts in such diverse fields as economics, bioengineering, accounting, chemistry, medicine, venture capital, computer sciences, patents, metallurgy and to many others to mention.

Enjoying this aspect of the work puts me on common ground with most jurors.  When asked in post-trial interviews what they enjoyed the most (if anything) about serving as a juror, one of the most often repeated answers is that they enjoyed learning something new.  Jurors like to learn.

Though we may share an appreciation for this aspect of the litigation business, the learning process for me is much different.  Depending on the case, I may spend several days with an expert.  In the process of helping prepare the expert witness for trial, I’m learning the science or technology involved, how it applies to an issue, and how it was used to form an opinion.  I can also ask the witness to contrast his or her methodology and opinion with that of his or her counterpart.  In doing so, I can create a side-by-side comparison of two conflicting opinions.  It’s an interactive process.  I’m able to stop the flow of information at any time to get clarification.  I can ask the witness to revisit the same subject as many times as necessary for my understanding.  In effect, I have a private tutor and I am in control of the learning process.  In addition, I’m highly motivated to learn.

Contrast the above setting with the world of the jurors.  The process of absorbing all the information they require to make an informed, responsible decision must be accomplished in real time.  There is no “pause” or “rewind” button.  They can’t ask questions.  They can’t even indicate when they’ve missed a point and it may be days or weeks between testimonies of opposing experts, so a side-by-side comparison isn’t practical.

As for motivation, they’ve been drafted by the judicial system.  Their personal and professional lives have been disrupted.  They have nothing directly to gain from the dispute one way or the other.  Their reward is a paltry sum of money and lunch.  Yet, as we all know, they’re the most important people in the courtroom.  It’s no wonder that the most often mentioned juror pet peeves are boring testimony and wasted time.

Because they are the most important people in the courtroom, this series of articles will focus on the needs and desires of the jury and how to comply with them.  The foundation for meeting those expectations lies primarily in good teaching skills.  Good teaching skills are good communication skills.  The courtroom is an environment unlike any other.  For that reason, many of the communication skill you will learn in this series are specific to that environment.

The following quote from Davis Ford, an expert witness, summarizes the differences between expert witnesses and trial attorneys, and as you (lawyers) are the one’s primarily responsible for preparing expert witnesses, it is important to know the differences between you and them.

As an engineering graduate student, I used to seek seclusion at the University of Texas Law School library in order to study, armed with a calculator, integral calculus tables and other supporting documents.  With this arsenal, I settled down at the table, using two to three times my allocated space.

I was amazed at the law students whose study aids consisted only of a felt pen and piles of books.  I calculated they read.

I use this illustration to show that our formal training is basically different.  Moreover, attorneys are basically taught to think and speak at the same time, while engineers, for example, are not.

Jury Selection

Since these series properly places emphasis on the needs of the jury, it is important to know as much as possible about the typical jury.  “Typical jury” might be considered by some to be an oxymoron, since every jury is made up of different individuals; however, the dynamics of the jury selection process tends to produce juries with similar qualities.

Experts need to be grounded in the notion that the only people in the courtroom that matter are the judge and jurors, particularly the jurors.  This should establish the foundation for everything they say and do.  It should drive the design of demonstrative exhibits, the choice of language and the style of delivery.

In building this foundation, I teach experts that the jury selection process often has two results.  I’ve labeled them, “The Mush in the Middle” and “Trial by Postal Worker.”

“The Mush in the Middle” is a somewhat pejorative reference to what is left in the jury box following excuses for cause and peremptory strikes.  I wrote extensively on this phenomenon in my book, Fixing the Engine of Justice:  Diagnosis and Repair of Our Jury System.  Here, I’ll summarize the effect as follows:

• Many highly qualified and highly educated potential jurors are dismissed for cause by judges who accept their excuses that their employers simply can’t live without them for the period of the trial.
• Some jurisdictions automatically dismiss the self employed, thus eliminating their abilities from the jury pool altogether.
• Peremptory strikes are frequently used by one side to eliminate highly qualified and educated individuals, while the other side is using theirs to eliminate those at the other end of the spectrum.

The trial of Robert Durst is one I cite as an example of what results from the mush in the middle, or, more probable in the Durst case, the absence of more highly qualified and educated jurors.  This was a Texas case not that long ago in which defendant Durst had admitted killing his neighbor, one Morris Black, dismembering him, dumping his parts in Galveston bay and fleeing.  The jurors found him not guilty for reasons stated later in post-trial interviews.

• Jurors claimed dismemberment and flight meant nothing.
• “One thing that influenced by decision, and the jury and I discussed this from the beginning of this trial, the defense told us a story and they stuck to their guns all the way through.”
• “It doesn’t matter if I thought he was guilty or not.”
• “The dismemberment and all that other stuff, you know, what happened afterward, the bond jumping, etc., that’s all coming later.”
• “We took Mr. Durst’s story out of the picture.  Based on the evidence, it just wasn’t there.”
• “Durst had holes in his story.  That’s why we had to separate his story out from the facts.”
• One juror believed murder couldn’t be proven without a head, which was never found.

“Trial by Postal Worker” is a phrase I’ve used that admittedly oversimplifies the results of the jury selection system, but nevertheless provides an apt title for purposes of this discussion.  Studying the demographics of juries will reveal that a disproportionate percentage of the jurors who remain in the pool from which the ultimate jury is selected come from demographic categories that represent a relatively small percentage of the total population.  These categories include; government workers, retirees and homemakers.  They make it past the first round of cuts, the “hardship” round, because they don’t have “good” reasons to be excused.

Since economics is the most frequent excuse posed by jurors, and most of those are due to employers paying little or nothing for jury service, among the working class, government employees are still standing when the dust clears.  Their employers don’t limit the amount of time jurors can serve while getting full pay.  Following a jury selection in Los Angeles Superior Court, for example, we ended up with nine of the twelve being public-sector employees – not an unusual result.

The Deliberation Process

Experts also need to know what goes on in the minds of jurors and during the deliberation process.  The bullet points I’ve come up with go something like this:

• Regardless of the complexity of a case, jurors will make their decision based on very few facts.
• A “cancellation effect” takes place with respect to expert witness testimony.  Each side hires an expert, they disagree with each other, the jurors tend to throw the testimony out and come up with their own “expert” opinions.
• In arriving at those opinions, jurors will use their own life experiences and intuition.
• If jurors didn’t understand an expert’s testimony, the expert gets the blame.
• By the time jurors reach the deliberation room, they will have forgotten 90% of what they learned from the experts.
• Jurors may remember that an expert supplied details to support his/her testimony, but they won’t remember the details.
• Jurors have been known to forget which side an expert represented.

Jurors’ Problems with Experts

Jury research has contributed a list of problems jurors typically have with experts.  It includes the following:

Language:

• Too much jargon and uses of complex sentence structure

Perspectives:

• Meaningful only to the witness and attorney
• Lack of common or analogous references
• Lack of anecdotal references and examples

Attitude:

• Arrogance
• Cockiness (vs. confidence)
• Indifference to the jury
• Too much advocacy at the expense of objectivity
• Too aggressive in cross-examination
• Indecisiveness

Non-verbal style:

• Dull delivery
• Low energy (produces perceptions of low confidence and low commitment)

Answering technique:

• Evasive during cross-examination (including indirect answers)
• Long-winded answers during cross-examination (which also dilute the most important points)
• Significant shifts in demeanor between direct and cross-examination

Part III of this series deals exclusively with answering technique.  In the meantime, expert witness research studies I have conducted reveal how observant jurors are of shifts in demeanor between direct and cross-examination and how readily it contributes to negative impressions.  To avoid those negative judgments, the witness’ performance on cross must mirror that of direct examination with respect to all of the fundamentals described in this series.  Posture, voice, eye contact, gesturing and answering technique must be the same.

Teaching ability:

• When jurors don’t learn what they believe they need to know, frustration results, leading to a conflict resolution by the jurors, which usually is resolved against the position of the witness.  In short, failure to understand the witness is blamed on the witness and is accompanied by negative perceptions.

Adding to the list drawn from jurors’ comments, I would add that one of the biggest problems with expert witness testimony is the attorney conducting the examination.  The problem arises when, after extensive work with the witness, the attorney becomes something of an expert as well.

This actually creates two problems.  The first occurs as a result of communication between the witness and attorney that is absolutely comprehended by the two of them and by no one else, as mentioned above.  The second comes as a result of what might be seen as a natural tendency on the part of the attorney not only to display that expertise, but also to exercise control.  This takes the form of leading questions from friendly counsel which can damage the witness’ credibility.

Expectations of Experts

Building further on the list of problems (and as a result of it) are a few basic expectations jurors have of experts.

• They tend to have an unrealistically high expectation of detailed knowledge on the part of the expert.
• They expect the expert to be able to answer hypothetical questions.  (The degree of relevance of the hypothetical is often lost on the jury).
• They expect the witness to be able to withstand an aggressive cross-examination without losing composure.
• The good news is fees aren’t usually a problem.  Where fees have been troublesome (even determinative of the outcome) is when jurors learn that an expert has worked extensively for the same attorney or corporate client.

How Jurors Make Decisions

Jurors tend to construct a version of the story based on their life experiences, biases and their reactions to the opening statements.  These are filters through which they interpret the information.  These filters are what trial consultants are searching for when we conduct surrogate jury research projects (mock trials).

Shaping the strategy of the trial then includes the choice between complying with existing filters (preferred), or attempting to create new ones (the tougher path).  After constructing their version of the story, jurors then evaluate the testimony to fit within that framework, according to two criteria:

• The relevance of the testimony to the storyline they’ve constructed, and
• The consistency of that testimony to the story.

For reasons cited earlier in this article, it should also be understood that jurors tend to take the shortest and easiest path to a decision.  That is, they rarely take into account all of what they saw and heard.  They do not process the information in a computer-like fashion.  They seize on what is most relevant to them, most often “big picture” points, and form their verdict preferences accordingly.

Look for Part II of this series, which will introduce the concepts of structure, language, style, and form.

Learn more about preparing expert witnesses (and fact witnesses too) by reading Taking the Stand – Tips for the Expert Witness.  Go to the “publications” tab.

Also, check out my book, Fixing the Engine of Justice:  Diagnosis and Repair of Our Jury System.  Select the “Jury Book” tab at the top.