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Simple Jury Persuasion: When does the expert witness need to be prepared?

Friday, June 24, 2011
posted by Rita Handrich

Expert witnesses often think they don’t need to be “prepared” and that “preparation” is a sort of insult to their professionalism.  “I’ve testified 100 times; trust me, I know the drill”. In truth, experts often need more preparation than fact witnesses and it is exactly because of their professional status. It isn’t about the expert’s knowledge. It’s about the jury’s need to understand what the expert is saying as well as the attitudes individual jurors often have about expert witnesses.

We often hear jurors talking about experts as “hired guns”, “full of themselves” academics whose testimony jurors don’t understand, and as “salespersons” who are overly aggressive. These attitudes can be overcome with some straightforward witness preparation strategies to help the expert communicate at a level that makes sense to and is credible with jurors. These strategies go a long ways toward making your expert optimally persuasive.

Understand when the ‘hired gun effect’ is triggered

Jurors seeing an expert witness as a hired gun is most likely to happen when the testimony is complex and not easy to process. But! The effect disappears when testimony is presented in a language jurors can understand. We often see experts who want to be listened to simply because they are experts. That won’t work.

Being an expert versus being a teacher

The most important thing you can do as you prepare an expert witness is to help them change from being a college professor to being a really good 7th grade teacher. If the evidence is complex, you need basic instruction in life science, not instruction for an advanced student in cellular microbiology. Help the witness see this as something very different from “dumbing down” expert testimony. Rather, you are teaching it to novices in a way they can understand, to help them evaluate evidence as it is presented.

An advocate for the truth, not for a litigant

An effective expert witness doesn’t advocate for one side or the other. A matter-of-fact presentation of information and evidence is best. Keep it conversational—like show and tell.  Lectures from experts draw objections from opposing counsel, but more importantly they bore jurors.

For the attorney: Never ask the expert witness “would you tell the jury…”. Instead use language to show you are in this together with the jurors—“would you tell US” about it.

If your expert is anxious about testifying, they may do well to read the Dvoskin & Guy article cited below. Two excerpts exemplify the content:

“By simply answering questions honestly, telling the court what we know, how we know it, and what we do not know, we will not only abide by our legal oath to be truthful, but also will maintain the credibility that is ultimately the only asset for which we get paid.” (p 202)

“Ironically, declaring one’s ignorance is the pinnacle of credibility. In our experience, jurors are most likely to believe experts who are willing to admit their limitations and ignorance.” (p 209)

These strategies may seem simple but they will go a long ways toward disposing jurors favorably toward your expert witness and thus toward your case. And that’s what you pay the expert witness for—credibility, competence and character.

 

Dvoskin, J.A., & Guy, L.S. (2008). On being an expert witness: It’s not about you. Psychiatry, Psychology and Law, 15 (2)

Cooper, J., & Neuhaus, IM. (2000). The ‘hired gun’ effect: Assessing the effect of pay, frequency of testifying and credentials on the perception of expert testimony. Law and Human Behavior, 149

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