Expert Under the Gun of Cross? Multi-sided Response to the Rescue

For your expert witnesses under the gun of cross-examination, usually the most problematic answer is a flat “yes” or “no.” Science holds few absolutes to be true, thus most scientists (which is the majority of your experts) are uncomfortable with an uncategorical “yes” or “no” in response to many of opposing counsel’s questions.

Yet opposing counsel has one goal in mind: get that expert to say “yes” to certain questions and “no” to certain others.

A useful technique is to suggest to your expert that they respond with a qualifier in front of their “yes” or “no,” such as: “In this situation, yes.” “Under certain conditions, no.” “When X is detected, yes.” “In the presence of Y, no.” And so on.

These responses open the door to asking your witness later, why they qualified their answer in such a manner.

Now, here’s where it gets really interesting: the results of meta-research on 107 different studies conducted over 50 years on persuasion and sidedness show that two-sided arguments are more persuasive than their one-sided equivalents, as long as counter-arguments are raised when presenting the opposing view.

So, in telling the jury the rationale behind the qualifier, the expert can present their thinking. For example: “It could be said, as opposing counsel’s expert stated, that X is a determining factor, however, more recent studies show that Y is the more decisive, thus the basis for my opinion.” This format serves to present the two sides of the argument, even as it raises the counter argument.

According to the meta-research, not only is such an approach more convincing, it also boosts the speaker’s credibility.

Win the Battle of the Experts

Considerable research has been devoted to figuring out how jurors decide among competing experts, which one to believe.

Not surprisingly, jurors are suspicious of expert motives, and assume that each expert will be biased toward the side that hired the expert.

However, setting that aside, jurors then pay close attention to the disagreements between the experts, how much of the evidence each expert actually speaks to, and how what the expert says fits with the overall presentation of testimony and evidence.

All this is well and good, and reminds us of how important it is for experts to consider their opinions within the context of the entire case.

But the true demarcation, that which often makes one expert the “truth-speaker” for the jurors as opposed to another of the experts, is the plain-spokenness of an expert. Jurors appreciate straight-forward opinions and testimony.  Jurors are suspect of an expert who can only render his or her opinions in jargon or otherwise technical language that impedes juror comprehension.

Lawyers, so thoroughly steeped in the case that they hardly recognize obscure language as such (because they’ve been using it in depos, in motions, etc. for the life of the case)  don’t facilitate the process for jurors because the lawyer is just as likely to ask questions using technical terms as the expert is to respond in like manner.

Get the jurors on your side by prepping your expert to speak in juror-friendly terms.

Refresh your awareness of what jurors will and won’t understand by presenting your expert’s opinions to a focus group. Or to your 15 year old nephew. Either will let you know in no uncertain terms whether the language your expert uses is credible and convincing.

How to Translate the Expert’s Opinions into Expert Testimony

An expert I recently worked with was brilliant, no doubt. His credentials were superb, his authority on the matter in question, well, unquestioned. But his ability to communicate his expertise in a way any lay person (juror) could understand was awful. His deposition was larded with phrases such as: “The administration let other departments in the facility seize the initiative with a consequent fragmentation of the support for educational technologies offered to staff.”

Now to say to such an expert “speak in plain English” would seem a common sense approach to preparing him for Court testimony. The problem is, the expert thinks he is speaking in plain English, and that any idiot should easily be able to understand him.

Arguing the point with the expert is a waste of time. Instead, help your expert by asking a series of questions derived from his or her statement, such as: “What did the support for educational technologies consist of?” Hopefully, the answer will be something like “Classes or seminars teaching the technologies” and if it hasn’t been explained already, then ask something simple like “What are the educational technologies you refer to?” Disregard the expert’s condescending glare, since his “Orthopedic charting software 101” is information the jurors can relate to far more easily than “educational technologies.” It’s also something you can put up visually on a chart, with icons that personalize and make real “Orthopedic charting software.”

As tedious as it may feel, go through your expert’s key points in this manner as you prepare him or her for testimony. You’ll now have a much more effective direct, and have given your expert tools for being convincing on cross, which the expert otherwise would sorely lack.