Train Your Expert Witness to Educate

If you are blessed with an expert witness who not only is proficient in his/her area of expertise, but also juror-sympathetic, count yourself among the lucky few, and hit “delete.” If, however, you sometimes find yourself working with an expert who, although proficient in the required expertise, but less than juror-sympathetic, read on.

A common problem is the expert who holds an attitude of “This is so because I, THE expert, say it is so.” Jurors are not convinced by such arrogance, even if it is well-deserved. What does convince jurors is the expert who seeks to educate the jurors, rather than impose his/her opinion. Encourage your experts to present information in a way that guides the jurors through a series of logical steps that results in an inescapable conclusion that just happens to coincide with said expert’s opinion. 

You can help your expert get there by challenging him/her in prep sessions with questions such as: “Why do you hold this opinion? Couldn’t it be X instead?” “Explain it to me as you would to a high school student.” “How did you arrive at this opinion? What’s the logic, step by step?” Remind your expert as often as necessary that their job is not to defend/plead the case – that’s your job. Their job is to educate the jurors to why your interpretation is the one that should prevail. Educating is far more compelling than arguing or fighting with opposing counsel - which is, more often than not, a losing battle. And you’re there to win!

Help Witnesses Think Before Responding

Thinking out loud is ordinary, common, and acceptable in regular conversation. However, in a deposition, it can make the difference between solid responses, and responses that give opposing counsel more information than was required – and could damage your case.

For example, to the question: “Are your neck symptoms resolved as we sit here today?” the response was: “Well, my neck was sore from the incision for a while. And I have a pain in my shoulder from that other surgery I had back in ’10, but my neck, yeah, it hurts whenever I try to move my head, like when I drive.”

Thinking out loud gave opposing counsel information regarding residual pain from a prior surgery which could complicate matters for you. Not to say that witnesses should ever hide information, but if the witness had thought through his/her response before verbalizing it, the witness would have limited their answer to the pain experienced as a result of the second surgery – the one at issue.

Help witnesses to do their thinking inside their minds before they verbalize their response. Reassure your witness that the moment or two it takes to organize an answer in their heads will not appear like “fudging” or evading the question. Video-taped role-play as part of witness preparation helps demonstrate to witnesses that “think time” is really very brief, yet critical.

A Simple Tool with Mighty Consequences: The Phrase

How you say what you say is every bit as important as the “what,” the substance of whatever it is you are communicating. Spoken language is decidedly not the same as written language, and lawyers, as accustomed as you are to written language – your daily drill – do not always attend to the expressiveness of their language as much as would be to their benefit.

There are expressive techniques to help jurors understand and appreciate what you have to say in the way you want them to. In other words, to help you be more persuasive. One of the most critical and easy-to-use techniques is phrasing.

Phrasing is the grouping of words together in logical fashion, with a slight pause on either side of the phrase, so that your thought can be easily grasped. Phrasing is how you make sense out of what you are saying, as opposed to indulging in the run-on sentences perfectly acceptable in written communication (like this one!), but lacking forcefulness when spoken.

Think of what you have to say in terms of phrases. Express a single thought, in about 5 to 7 words, pause, and then express your next thought. The jurors will follow your thinking with minimal effort and be much more readily persuaded.

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