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Presenting Expert Testimony Where there are not pictures keeping a jurys interest in what the expert has to say 1

| Dec 12, 2018 | Articles

My Views of What We Do.

There is nothing more satisfying than watching a skilled trial lawyer do his work, laying foundations, examining with precision, maintaining control of the forum, carefully laying out his case consistent with his representations in opening statement, earning the respect of the court and jury, and arguing the case

persuasively for a positive result for the client.  It is particularly satisfying if the lawyer achieving all of this is YOU!

Trial work is a grand game of “Mother, May I.”   Done properly, the skilled trial lawyer does his work under the trial judge as conductor and knows the rules and when to ask permission to move about the courtroom so that the evidence, both testimonial and documentary, is developed in a logical, understandable fashion.

“Ladies and Gentlement,  a trial is a “theater of the real”. We are portraying what has taken place and “replaying” a tragic day in the life of my client – a day which my client wishes never happened, but it did. Now we are here to talk about the my client’s claim for compensation for an injury that could have been avoided but resulted from the fault of others, who are now being asked to provide compensation for my client for the losses caused.”

Let me stress: Atrial is not about YOU, it is about your clientand that client’s  case. So the real challenge is how to keep the jury’s interest when the presentation – no matter what you do – can be boring, tedious and most of all, without pictures.  How do you make it interesting so that heads do not bob, juror’s are noticeably restless, and you simply lose their attention.

Here is what I try to do (not always successful but you have to try):

  1. Let the Jury Know in Advance That There Are Some Tedious Parts – Be Frank (but see No. 8).

This is one of those fine lines.  You have to let the jury know there is some areas of expert testimony that is there to educate them on what is important for your case.  My approach is to say that these are likely unique areas to them, and the purpose of the expert is to provide the information they need to decide the case. If there are disputes among the experts, I also alert them to that as well.

  1. Try to Create an Environment that Allows Jurors to Think that They can Learn Something Important From the Expert’s Testimony.

I also let the jury know it is MY job to make sure more complex and detailed (aka “tedious”) areas are explained to them given the Q and A format for a trial, and that I will do my best to allow the expert to “teach” them what they need to know through direct examination.  That is, I try to make this a learningexperience for the jury, and challenge them to be a part of that learning process.

In short, my goal is to make listening to the expert as a teaching experience, like going back to school.

That will pose a challenge for the jurors or at least peak their interest.  “Folks, you will find this very interesting and new. We will all learn together about an area that is unfamiliar, and entirely new to us.

  1. Bring the testimony Home to Something The Jury Can Identify with: Insurance, Taxes, Business Issues They Might Encounter.

A similar approach is to make the subject matter relevant to events in jurors lives. We all purchase insurance, we pay taxes, we have personal/business issues that must be addressed, or employer-employer issues. There are questions in cases involving insurance coverage and claims. If there is an area that touches generally on issues that are relevant to daily living explore such so the juror’s maintain interest.

One of my favorite questions in working up to the issues is:  “How does this [subject matter] work?”  Let the expert give the jury a little capsule summary of what the subject of the testimony is all about.  A jury ”teaching moment” sometimes overcomes complexities and disinterest in the subject.

  1. Use an Expert Who Can Communicate.

The smartest “guy” in the room is not always the best expert witness.  This does not mean that your expert must have “flair” or be right out of central casting, although I have had a few over the years who met that standard.  It makes your (trial) day.

Communication here means doing that in the  courtroom environment so that a court and jury want to listen. They feel the need to learn and understand and the witness must be able to create the environment so that a jury senses that this witness is important and can tell us what we need to know to make the right decision.

Academics are fine if they are not too pedantic. Practitioners are fine if they are not too colloquial.

  1. Make it Quick (“Efficient”) – Don’t “Guild the Lilly”. 

Keep it moving.  If the expert is not high on the list of communication skills, then work around that. The questions should be short, to the point.  Some experts are just what is needed to fill gaps or holes in the evidence.  If they do not have allot to add but a few points, then get that done and move on to the next witness.

Even if the expert is a “superstar” who has great credentials, and knows how to talk to a jury, if the areas of expertise are narrow, then do not belabor the process.  Jurors get distracted and bored easily if a witness’ presentation drags on beyond what they need to know, so get the job done and close it out on a high note, thanking the expert for his contribution to your client’s story.

  1. Keep Yourself Out of It. 

Very frankly, I see too many lawyers who are more interested in “look at me” than “look at my client’s case.  Perhaps that is a bit cynical. But when the expert is on the stand, stand back. It is the expert’s show. That expert is there because you want this witness’ help in understanding your client’s case. Don’t get in the way of that process and goal. Let’s the expert add to your client’s story.

  1.      Use Some Illustrations, or Power Point if You Can (but don’t turn the lights off). 

“Show and tell” is not suitable for every expert. Psychologists, neuropsychologists, and other medical disciplines do not have bones, scars or imaging studies to portray injury.  Sure there are diagnostic tests, nerve conduction studies, psychological testing, EMG’s and scans of various types, but they likely do not “tell the story”; they may only explain why the condition and symptoms exists..  Their testimony is to put the medical issues into words, so the jury gets the concepts.  Questions to ask to assist in this process include:

  • What is this psychological condition called?
  • How did it affect Mr. X?
  • Was his behavior after the accident different from before?
  • What did your patient tell you about that?
  • Was this change consistent with the type of symptoms you would expect from his injury?
  • How does that work?
  • What is your opinion – to a reasonable degree of medical probability – as to how long this will last?
  • What is your opinion as to how long this will last?
  • How will this affect his daily activities?
  • Is it your opinion – again to a reasonable degree of medical probability – that this will improve or continue as is?
  • What is this based on?
  • So, a year, two years, five years from now is it your view that Mr. X will not be much different than he is today?
  • Will this condition get worse?
  • And what is that based on?
  1.      Don’t be Apologetic. 

If the area of expertise if it is dry, there is no need to apologize.  Just tell the jury how it “fits in” to the case, and why it is essential.  I do not suggest that it is a dry area but just explain the need to have the expert testify as part of my client’s “story” and to explain why we are in a trial.  No apologies are necessary; just get on with it.

  1.      Make the Evidence “Talk”.

With these experts it is the “text” or transcript of their presentation that is the evidence of injury and past and future care that is required.  Often I use the transcript in argument on a visual presentation program to give the finder of fact (arbitration, court or jury trial) jury some time to create in their own minds  the visual picture of what was said by this expert.  Key quotes can remind the jury of the hurt, agony, and enduring psychological injury in a case such as I have outlined above.

  1.    Have a Solid Wrap Up.

Here it he military teaching model provides a valuable suggestion.  In classes during my cadet and early military training, there was always a “wrap up”:

“Let’s review.”

I was reminded of this lately in seeing an ad for a small lantern that is now being sold on a “military theme” of indestructability. The commercial shows the durability of this lantern (indeed I bought several for my family).  At the end, the spokesperson, a very fit man in “military green” fatigues and t shirt, says, “Now let’s review.”  He then outlines the basic points of his pitch.  It worked on me.

A solid review with the expert is a good way to establish transcript that you can reuse in a visual in your closing argument as I suggest.

[1] This paper will address the presentation of expert testimony for a client, and not the approach to challenging your adversary’s expert testimony.  That is for another day.

[2] Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from the University of California, Hastings College of the Law, in 1966.  He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbinson, LLP, with offices in San Francisco and Santa Rosa, California.  He is certified in Civil Trial Law and Civil Pretrial Practice Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of the American College of Board Certified Attorneys.  Mr. Kornblum is also a Charter Fellow of the Litigation Counsel of America where he is now a Senior Fellow.  He is a “Top 100” Trial Lawyer, a “Top 10 Lawyer” for California in the personal injury field, a Life Member of the Multi-Million Dollar and Million Dollar Advocates Forum, a Platinum Member of The Verdict Club, a Silver Member of the Elite Lawyers of America, and a Legends Society Top Lawyer (Personal Injury).  He has been a Super Lawyer each year since 2006.  He is co-author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America), with a Fourth Edition released in March 2018.  He has also co-authored two books on insurance coverage and bad-faith and over 200 published articles on topics relating to law practice and procedure.