Turning expert witnesses' data into meaningful testimony

Richard Gabriel, The Daily Record Newswire

Lawyers care about an expert’s credentials, how the expert’s opinions support their case, and the expert’s ability to withstand cross-examination. Experts care about their reputation and how to balance objectivity with assisting their client’s case. Jurors just want to figure out what the heck is going on.

The problem is that lawyers and experts often forget to focus on helping the jury figure out what’s going on. They present a mountain of data, but they don’t necessarily make it easy for jurors to understand what it all means and how the data relates to the expert’s ultimate opinion.

“Often the connection between the expert’s data and their conclusions, which is the story line, is not clear for the judge or jury,” said Peter Lengsfelder, President of Clear Case Legal, a national trial support firm based in San Francisco.

Of course, this problem is not unique to jurors. Very often in society, people become anxious because “information doesn’t tell us what we want or need to know,” writes Richard Saul Wurman in his book Information Anxiety. Wurman is the founder of TED, the now-ubiquitous conference on innovations in technology, entertainment and design.

But the problem is particularly acute for jurors, who often have to make sense of an entire professional field with which they’re unfamiliar.

Here are a few tips for converting experts’ data into understandable information:

• Explain the expert’s field.

A big problem for jurors is that they have no context in which to place the expert’s data and opinions, because they aren’t familiar with the expert’s area of expertise. So it pays to take some time to explain the expert’s field.

First, the expert should broadly define his or her field of expertise for the jury and describe the history of the field. That creates important context for the jury to understand the place of the field of expertise in society, not just in the courtroom.

Then, the expert should describe what he or she generally does on a day-to-day basis. Aside from the expert role, this testimony allows jurors to see how someone in that field normally operates. It also allows the jury to create a set of standards for all experts in the case, thus controlling the definition of expertise in this area.

The witness can then explain how an expert typically looks at the particular issue or problem in the case. After that, the expert can walk the jury through his or her own personal process of looking at the issue in the case, step by step.

• Use graphics to convey ideas, not just data.

“It’s very common for experts’ trial graphics to lack an educational element,” says Lisa Hipp, one of the principals of Visual Advantage, a graphics company headquartered in Denver. She explains that the graphics illustrate the content of the expert’s opinions without showing a jury how he or she arrived at those conclusions. This causes confusion and ultimately suspicion about the basis for the expert’s opinions.

Hipp recommends using flash media to build graphics step-by-step, to reflect an expert’s internal thought process as he or she analyzed the case and arrived at conclusions. This step-by-step process can also allow for click-throughs and links in the created demonstrative to support documents built into a graphic.

For example, Hipp described a construction defect case where an expert was asked to analyze the damages for 26 separate recurring defects in 179 homes in a tract. The expert originally had pages and pages of Excel spreadsheets detailing the damages. Hipp helped produce a site plan illustrating the 179 homes. Then, when each defect was described at trial, the number of homes on the map that had that particular defect would light up and the amount of money it had cost to repair that damage would appear over that home. That provided an anchor image – the home – as a way for jurors to make sense of the damages number that the expert was describing.

In general, graphics should be used to make conclusions visual so they will take a more concrete form for the jury. Whether you use a storyboard, process charts, organization charts or timelines, the graphics should be anchored to a central, tangible theme. That theme can then be rendered into an image that is employed in a number of graphics during the trial.

• Use specific examples.

A 2004 study by Brian Bornstein at the University of Nebraska concluded that jurors prefer an expert’s anecdotal evidence to his or her epidemiological or experimental evidence. That once again demonstrates jurors’ desires to have concrete examples to help them create meaning out of the mass of data presented to them.

For example, an expert can testify about the properties of different types of glass a manufacturer might use in a commercial bus. However, Clear Case Legal designed a contained demonstrative to illustrate clearly how those individual glass selections react in a collision. A jury can see and feel immediately how a passenger might have sustained different types of injuries, depending on the chosen glass.

• Watch out for jargon.

Experts and attorneys, because of the time they have spent immersed in the minutiae of a case, inevitably develop shorthand jargon — which can create confusion for the jury.

This phenomenon occurs especially frequently in patent cases, says Lengsfelder. “Patents are often described in arcane language. These definitions become the framework for the judge and jury to decide key elements of the patent. The expert that provides the clearest definitions through tutorials creates context for their opinions. They have a much greater advantage.”

The bottom line is that jurors are often confused by and suspicious of expert testimony and the credibility of the witness and the case suffers as a result. The approach described above allows the jury to catch up to the where the experts and the attorneys are in the case. It gives them context in which to view the expert’s opinions, enhancing the credibility of the testimony.

In the book The Information Age, William Davis and Allison McCormack summarize the issue in a meaningful way: “Data are facts; information is the meaning that human beings assign to these facts. Individual elements of data, by themselves, have little meaning; it’s only when these facts are in some way put together or processed that the meaning begins to become clear.”

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Richard Gabriel is president of Decision Analysis, a trial consulting company with offices in Los Angeles, Chicago and San Francisco. He is co-author of “Jury Selection: Strategy & Science,” published by Thomson-West.

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