I was conducting a post-trial interview recently at the conclusion of a two week trial. This was the sixth juror who was willing to speak with me about his experience.
Of key interest to me and my client was how the jury reacted to the witnesses, in particular one of their new expert witnesses. Finally, this sixth juror was the first of those I spoke with who could provide any details as to the substance of what the witnesses said (fact or expert) and how the substance impacted the final verdict.
I've seen this pattern repeat itself many times: Parties spend tens of thousands of dollars on experts witnesses, with the hope that the witnesses will be able to help jurors understand and ultimately believe their side of the case. Then they find out during post trial juror interviews that jurors might not even remember the witness, let alone what he or she said. Why does this happen?
The Expert's Communication Style
When experts are asked their opinion or even simply asked a question while under oath, they provide too much information leading up to the answer before actually answering the question. This happens for a variety of reasons: sometimes they are reasoning their way to an answer, other times they are hedging their answers with caveats, and other times they are laying the groundwork and providing the rationale behind their answers. In the professional world there's nothing wrong with this style of answering questions, but in the legal setting in front of a jury it's counterproductive.
Jury Psychology
Jurors get bombarded with information at trial and their attention spans are short. When a witness gets asked a question, if the answer doesn't come immediately, it's likely that the jurors will tune out and even forget or stop caring what the question was in the first place. This is particularly true with expert witnesses because the explanations, rationale, or back story is likely too complex, confusing, or convoluted for the jurors to even understand, much less apply to the larger context of the case. So they stop listening at best, and at worst, become irritated and feel like their time is being wasted.
The Fix
Attorneys who prepare expert witnesses to testify need to teach their experts "answer discipline." This means that when an expert is asked a question, the actual answer must come first, before any explanations whatsoever. Even if the answer is as short as "I disagree," or "That's incorrect based on my research." If an explanation is needed, it only comes after the actual answer is given. This is true for deposition and for direct- and cross-examination testimony.
Practice is Vital
It's not enough to simply tell an expert witness to answer the question before providing an explanation and trust that they'll do it. They won't. This is because they don't normally communicate this way professionally and they see their explanations as the foundation to their conclusions, so it naturally comes first. As such, just as with acquiring any other skill, it requires a substantial amount of practice and targeted feedback before any expert witness will become even proficient at answering first and explaining second. Then it will take more practice for the witness to master the skill. But with the right amount and type of practice, expert witnesses can become effective courtroom communicators and memorable witnesses for jurors. Click here for ways to help expert witnesses testify more effectively.
For more advice on how to improve witness preparation, check out these posts:
Jeff Dougherty, M.S.
President - Litigation IQ
713 392 8135