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.

Words, words, words!

Did you know that the very words you use in framing your question will encourage witnesses to think and respond differently?

For example, in a study in which a group of people were asked to estimate a basketball player's height, the response varied. When asked "How tall is he?" those in a study answered on the average, “79 inches.” When the question posed was, "How short is he?" of the same player, subjects answered on the average, “69 inches” a difference of almost a foot!

Choose words such as "fast" when you want to suggest speed, "far" for distance, "tall" to emphasize height, and "short" to minimize it. "How fast was the car going?" suggests high speed. "At what speed was the car traveling?" suggests a more moderate speed. "How far was the intersection?" implies that the intersection was far away; "How near was the intersection?" implies the opposite.

Choose the word that presupposes your desired answer. "How long did that go on?"
denotes a situation went on a long time. "How soon was it resolved?" indicates the situation did
not go on a long time. "How many people were involved?" implies many people were involved.
"Who else was involved?" implies just a few people were involved.

It is surprisingly easy to make deliberate word choices that better focus witness responses - and therefore juror perception - to your advantage.