Don’t Let Your Expert be Goaded into Defensiveness

There’s a world of difference between assertive expert testimony and defensive expert testimony, where your expert is essentially arguing with opposing counsel.

Now, your expert may believe he or she has every good reason to argue with opposing counsel, as in, opposing counsel is dead wrong. But arguing with opposing counsel is never a wise strategy, and often a road to discrediting your expert.     

Your experts do best if they don't consider the question an attack (regardless of vocal tone), but rather as an opportunity to further clarify and educate. Key words – a mantra, if you will. Your expert’s job is to clarify and educate. Period.

For example, opposing counsel asks, verging on the insulting: "Isn't it true that the validity of the tests you used is suspect?" Instead of answering defensively: "I personally examined the validity scales of every test," a clarifying and educating response might be (in a calm, neutral tone): "Certainly, validity is always a primary concern, as are reliability, standardization and other such issues." Using the question to clarify an issue, the expert scores with the jurors and in the process sidetracks opposing counsel (who was undoubtedly expecting the defensive response).

Helping your expert to see his/her way to clarifying and educating – rather than allowing themselves to be goaded into defensive responses –  inevitably paves the way to a more credible, juror-sympathetic response.

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I recently had the opportunity to write an article for California Litigation. "Out With The Old, In With The New—Try An Updated Approach To Jury Selection" appeared in the latest issue. Click here to view.

Can’t Live With Them, Can’t Live Without Them: Jurors

Trials would be so much easier if you didn’t have to deal with jurors. Jurors wander off mentally during your most crucial testimony, they’re distracted by a lawyer’s mannerisms, they’re irritated by an expert’s vocal tone, they disapprove of a witness’ attitude. Jurors misunderstand the law, making it up as they go along.  Jurors impose their own version of what’s right or wrong, what’s negligence, what should be the standard - be it of care, warning, safety or other. Jurors deliberate as a group, which introduces the whole notion of group dynamics, complicating the matter further. Need I go on?

But jurors must be dealt with, and more importantly, with how they come to the decisions they make. For the better you can determine or discern what impacts those decisions, the more likely you are to succeed at trial.

This is where intense, targeted use of the pre-trial focus group can be especially valuable. Instead of letting focus group “jurors” elect a foreperson and talk over each other to arrive at a consensual decision, use a facilitator to ask probing questions of each and every juror, to analyze how each juror arrives at their various conclusions, and to observe how group dynamics affect those conclusions. In addition, a facilitator can keep track of each juror’s opinion, which in turn is highly useful for jury selection.

Truly, in this as in many aspects of litigation, knowledge is power.

Help Witnesses Deal With The Lie

 What frequently occurs as you prepare your witness (usually the client) for deposition or trial, is a resounding “That’s a lie!” to your best attempt to replicate what will be opposing counsel’s “Isn’t it true…” questions.

For all that it may be highly satisfying for said witness to roar “Lie!” it is not good juror strategy. Jurors are best persuaded when they come to the “Lie” conclusion on their own. Encourage your witness to respond to what they consider a “lie” with phrases such as “That is incorrect,” or “That’s not correct,” or “That’s not how I experienced it,” or some such.

Reassure your witness that at trial, the “lies” will be revealed for the jurors, for example through a “Chart of Inconsistencies.” As defense, for instance, you could bullet on a chart what the plaintiff told Dr. A, the different story he told Dr. B, and the yet more different tale he told at deposition. Or as plaintiff, you could bullet on a chart what defendant told the police, what was discovered in emails, what she swore to in interrogatories. Such a chart alone, since it references facts, has more impact on today’s jurors than your witness’s forceful expostulation “And he lied!!” ever could.

Once your witness understands that you will not let the “lies” go undiscovered, he or she will more readily accept your recommendation of “incorrect” as a valid alternative.