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 he/she 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 he/she 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 his/her thinking as, for example; “It could be said, as opposing counsel’s expert stated, that …, however, studies show that …, which is why my opinon is …” which format serves to present the two sides of the argument, and raises the counter argument.

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

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*Daniel O’Keefe, 1999, Communication Yearbook, 22, pp. 209-249

The Question’s Not the Problem: The Answer May Be

How many times in your youth, were you told by a benevolent, or at the very least, good-hearted, coach or teacher, "There’s no such thing as a stupid question." You’ve probably said that very phrase to your children as well.

And yet, when jurors ask during deliberations to have something explained to them, or ask a question that clearly reveals their lack of understanding, lawyers will frequently roll their eyes and mutter about "the decline in average intelligence" or mumble about the impossibility of getting “bright jurors” on the panel.

Similarly, in focus groups, when it’s obvious the mock jurors have completely missed a lawyer’s point, the lawyer will often blame the jurors for their stupidity . . . which drives me absolutely berserk.

Jurors are people who are good at what they do! Whether that’s repairing cars, or managing a convenience store, or cleaning houses. And just like the show "Undercover Boss" reveals the inability of most bosses to accomplish the mundane tasks of their employees, I defy any attorney to walk in the shoes of any juror and accomplish their tasks in life, from bus driver to pediatric nurse, with the same level of expertise as said juror.

There are no stupid questions. There are simply different arenas and levels of experience in the world. Run your cases by focus groups whenever you can to ferret out what are the issues critical to your case that jurors are likely to misunderstand, or fail to comprehend.

Then do all that you can, with the aid of visuals whenever possible, to clarify matters for those who will be your "real" jurors.

There are no stupid questions. But there are some mightily confusing, obfuscating answers.

Address Americans’ Overriding Concerns: Safety & Trust

An unfortunate statistic came to light recently: the United States now leads all other countries in terms of anxiety. Fully 31% of our population will experience an anxiety disorder during their lifetime, according to the World Health Organization. Contrast this against the 4.8% of the Chinese population (one of the lowest) or even the 25.3% of the Columbian population (the next highest to the USA).

We live in one of the most affluent societies in the world, and yet the majority of our population does not feel safe. Safety is, put bluntly, Americans’ overriding concern.

How does this matter to you? Whether you are plaintiff or defense, you must take into account how your jurors will perceive the safety factors inherent in your case. This does not merely apply to product liability, med mal or personal injury cases, where safety concerns are usually obvious. This applies equally to business contracts cases, disputes over IP, even eminent domain.

Safety, you see, isn’t just about physical safety. Safety is also about emotional safety, the ability to trust--to trust self and others, to trust those we deal with day to day, be they drivers or doctors or everything in between, to trust businesses, corporations, and other institutions. When you can’t trust someone or something, you don’t feel safe.

Americans’ overriding concern is safety. Pay attention to the safety and trust issues in your case, and address them appropriately.