Judge Connors opines about experts and attorney behavior at section meeting


By Frank Weir

Legal News

Circuit Court Judge Timothy Connors is not convinced that paid expert witnesses make a whole lot of difference in a jury's deliberations.

Connors' thoughts were expressed at a meeting of the WCBA's Trial Practice Section last week during "Trial Attorney Methods and Techniques: An Observation from the Bench."

A participant asked the judge if trial attorneys tend to "overdo it" with too many expert witnesses. "Yes I do think that," Connors responded. "And on the same topic, in my experience, juries don't put a lot of weight on your paid experts. They pretty much dismiss them outright.

"Experts are supposed to be assisting the finder of fact to understand the evidence. If we really had experts that were appointed by the court and not hired by attorneys, I think jurors might listen. I can't think of a single case where a jury's decision rested on experts."

The session began with a question to Connors of how juries react to "redundancy." The repetition of factual matters by attorneys. "I have two observations," Connors said.

"First, in my experience, most jurors hope they get bumped and don't have to hear the case. But afterwards, I would say over 90 percent tell me they were glad they participated and that they learned something. It was so different from what they see on television and they feel humbled by how hard it is."

He said that jurors see how difficult it is for finders of fact sitting there with imperfect information and never knowing if they are making the right decision.

"They have a great sense of responsibility. Now having said that, the other comment I get overwhelmingly is they say they got it the first time, the second, the third, the fourth, and so on.

"I think it's always helpful to headline things for a jury. What is it you are trying to elicit so they understand where it fits in. There's nothing wrong with a headline question."

He said that he considers "distilling" the case to its essence, to its "skeleton" is essential.

"Stick to that skeleton and then start bringing in your facts, like adding a muscle group to the skeleton and explain that to your jury."

He noted that, whether one is discussing written or oral advocacy, it's important to stick to the three basic questions: what do you want the judge or jury to do; how can he or she or they do what you want? What's the statutory authority? What's the case law? Court rules? Give us the confidence that we can do what you are asking us to do; then the why comes last.

"It's the same process for a jury. Think of the jurors sitting there. They need to understand what it is you want from them and why should they do what you are asking. Explain the how to them, how the judge will tell them later about the legal tools at their disposal."

The session concluded with a discussion of attorney behavior in front of juries.

"Restraint, civility, and preciseness are all extremely important, I think.

"I understand the situation when attorneys start picking at each other. You're prepared, your clients are sitting there, you get into the moment. But absolute restraint is the key to persuasiveness. So if your opposing counsel digs at you, keep your self control, and say, 'Let's go back to what we are here for.'"

Connors joked as he clasped his hands together prayerfully, "Be Buddhist about it: 'I Thank My Enemies For Helping Make Me Strong.'"

Connors noted that warring attorneys are especially problematic in the family law arena.

"I have reached the conclusion that family law is the most important work we do, the most difficult, the most draining professionally. It's not binary. It's not a win or lose situation. Decisions ripple on down the road. People already are highly emotional in family law cases and I understand your need to vent but it makes it hard for a judge to agree with a belligerent attorney. Even if your client is pushing you and telling you to get up there. You've got to tell them that just won't work.

"I know this may differ between judges but this is how I view it."

Published: Mon, May 9, 2011