By William Bailey, Esq.
Mr. Bailey is one of the named partners of Fury Bailey Trial Lawyers, Seattle, Washington. They are plaintiff attorneys who do a sizable amount of maritime litigation. Reprinted with permission of TRIAL (February 1993). Copyright the Association of Trial Lawyers of America.
Recently, I passes a court reporter in the hallway who I knew had been assigned to a civil case that would last several weeks. When I asked how it was going, he paused, rolled his eyes wearily, and sighed. "The usual war of the experts."
War or not, the selection and use of expert witnesses is a principal factor that determines whether a case is won or lost. Even flawless, inspired trial technique by the lawyer will not redeem weaknesses in the expert testimony. It is well understood by participants in our justice system that a case is only as good as the experts behind it.
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 to ensure a film's success. Trial lawyers are expected to search relentlessly for just the right combination of experts and evidence to carry the message to the jurors, persuading them to enter a verdict in the client's favor.
Early 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 was observing. The reason? The lawyer's expert witnesses weren't as good as his opponent's. The jurors decided the case only on the evidence at face value, 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 is what wins lawsuits. The selection, recruitment, and grooming of expert witnesses behind the scenes is far more important. This article describes how experts can be used effectively to persuade the jury.
The first thing every lawyer has to realize in using expert witnesses is that we are living in the sound bye era. For at least the last decade, the news media have adopted the philosophy that shorter is better when it comes to reporting events. It is not at all unusual to see a politician's 30 to 60 minute speech condensed into a five-second byte on the nightly news. News stories rarely go beyond one and a half minutes, so extended oratorical flourishes simply do not fit the pace of a news program.
The shrinking attention span of the public is a fact of life in the last decade of the 20th century. Everywhere you look, consumers of information are 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. It is therefore essential that you bring rapid pace to your presentation of an expert witness's testimony. Even though jurors are 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 jurors is 30 seconds or less. In this brief time jurors 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 jurors that your expert is worth listening to, they will than "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 there is anything of value in the presentation. You and each of your experts will have to continue to convince them to keep paying close attention.
Forty-five minutes of an expert's testimony may be broken down into as many as 20 to 30 segments of juror attention. Jurors constantly reexamine whether to continue to listen. If the structure and pace of the testimony do not promise a sufficient reward, 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 as long as they get value from what you or your expert has to say. Ask yourself how many of the jurors would stay tuned if this expert appeared on their television screen at home. If your answer is uncertain, you'd better revamp the expert's presentation.
When structuring expert testimony, take into account the principles of primacy and recency. The jury will best remember what your experts says first and last; what is in the middle tends to get lost. Therefore, the beginning of the testimony is critical for two reasons: It determines whether the jury will pay attention at all, and whatever is said will be best remembered later in the jury room.
Most lawyers squander the golden opportunity of the first five minutes of an expert's testimony with a leaden recitation of qualification. Lawyers are resume freaks and tend to give accomplishments on paper much more weight than the average lay person would.
I recall vividly an occupational disease case I tried in which the defense brought in a preeminent physician who was the author of a leading medical book text book. The defense could not resist trotting out this Doctor's qualifications in excruciating detail, taking the better part of an hour. The lawyer neglected to consider that all this detail would be terribly boring to the jury. My worry about this expert demolishing our case when, after 20 minutes, I saw one juror roll his eyes, lean over, and whisper loudly to the jury 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 since decided to tune out.
The average juror only wants to know what field the expert represents and whether he or she has a license in that area. If the expert is on the faculty of a university, or has headed up a national commission in the field, that information would probably impress the jurors as well.
Always be on the lookout for a human interest story buried in the expert's resume. For example, a surgeon I presented in a products liability case spent five years in a clinic in Africa after his medical school training. This was the only thing I touched on in presenting this surgeon's qualifications, allowing the jury to see him as a devoted humanitarian. Another surgeon I called in a burn case described his wrenching experience as an Army surgeon in Vietnam, which caused him to dedicate his career to burn victims. This human interest approach allowed these experts to pass the jurors' first 30 second "screening." The jurors bonded to them immediately and believed their testimony.
The underlying principle at work is that even the strongest credentials 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.
It is a sad but true principle of human nature that how people look is an important factor in determining how much credibility is given to what they say. People who "look the part" they are assigned to play as an expert witness stand a greater chance of persuading jurors to adopt their point of view.
For example, in an asbestos case, my medical expert, Dr. G. S., met the jurors' expectation of what a credible physician/expert should look like. He was tall and good-looking, with a full mane of white hair and a British accent. He also had a dry, self-deprecating wit that 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 stack of medical text books, but none of this made an impression on the jurors. They liked this witness and judged what he was saying to be credible, even though the defense made a spirited attempt to discredit his views.
On the reverse side of the coin, the defense brought in Dr. D.S., who was on a medical school faculty, had written many publications, and displayed a grasp of current medical research. But this doctor suffered from several handicaps, the worst of which he talked down to the jurors. He told them at one point that he did not believe that lay people were qualified to make medical decisions like the ones they were being asked to make in this case. This rankled the jurors, who had taken an oath to do their best to listen to the evidence and render a just verdict. This doctor, who had no sense of humor, also suffered from looking too much like the proto-typical egghead scientist; he had a high, square forehead and black Clark Kent type glasses with thick lenses. He was clearly at a disadvantage in the face-off against Dr. G.S.
Of course, none of this means you can ignore the substance of your expert's testimony and rely on an attractive face and smooth tongue. It simply means that in a contest of qualified experts, appearance and demeanor can be major factors in tipping the balance one way or the other.
KEEP UP THE PACE
Jurors would like us to get the point and get to it quickly. You must cater to their expectations, one of which is that you will present testimony the way it is presented on "L.A. Law"
In an episode of the program, expert testimony takes 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 trail lawyer is to select the key points on which the expert testimony depends, hit those hard, and get out quickly. Rule 705 of the Federal Rules of Evidence has liberated us from the drudgery of putting in every detail that supports the expert's opinion. Yet, many trail lawyers act as though that rule were not there, slogging through every detail in a swamp of expert testimony.
The thoughtful advocate spends a good deal of time scripting the most efficient and powerful way to present testimony. You should meet with the expert on several occasions to extract the most essential parts of the testimony and present only those to the jury. Adding weak or barely relevant evidence to your case for bulk does not make your case any stronger. Rather, like corrosive acid, it eats at the power of the persuasive evidence.
In fact, some studies show that the presence of weak evidence cause jurors to doubt the value of stronger evidence; they figure something must be wrong with the stronger evidence or the lawyer wouldn't be putting in all this "filler"
Experts who are college teachers tend to be better at explaining information 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 from, expert testimony is just another form of classroom teaching; only the location - the courtroom - is different.
In many way, you must streamline the testimony the same way publications like Reader's Digest and USA Today do with magazine and news articles. Recently, I was walking back from lunch with another lawyer, who glanced at the USA Today headlines through the 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 store." For similar reasons, Reader's Digest chisels out the less interesting parts of the articles and leaves only what the readers will be interested in. You must do the same thing with testimony of your expert witnesses.
After you and the expert have come up with the final version of the expert's testimony, it is useful to videotape it and show it to a focus group in a mock trial setting. Ask the jurors what parts of the testimony they found persuasive and what parts were difficult for them to accept.
This "test marketing" can give important feed back on how likely it is that an expert's opinion will be accepted by a lay jury. You may isolate the "hot buttons" that will have maximum juror appeal.
Select the key points on which the expert testimony depends, hit those hard, and get out quickly.
Winning or losing a trial depends largely on the persuasiveness of experts. Given careful thought to how you will present their testimony. A rapid, efficient presentation of only essential information-complemented by effective visuals-will go a long way toward ensuring that your side wins. If you win the battle of the experts, you are also likely to win the war.
Home ! Search
Page ! Master index ! Table of Contents
for this Issue