Dr. Noelle Nelson

Sympathetic Eyes:
The following guidelines will assist both plaintiff and defense attorneys in choosing and preparing expert witnesses
(originally published in The Daily Journal, Verdicts & Settlements)

Whether you're representing plaintiff or defense, you will almost inevitably need to hire expert witnesses. The problem is that not only are expert witnesses considered “hired guns” but that experts are increasingly expected by jurors to look, walk, talk and behave like the polished actor portrayals on such popular shows as the Law and Order original and spin-offs, and the CSI original and spin-offs.

As lawyers know all too well, few expert witnesses can pull off such poise, posture and presence under any circumstance, much less under the intense cross-fire of opponent's examination.

The following guidelines will assist both plaintiff and defense attorneys in choosing and preparing juror-sympathetic experts, in addition to some specific tips for each side.

1) Make sure your expert looks the part

Try to meet your expert in person if at all possible, so that you can assess whether or not the expert looks professional, and credible as an expert in whatever his or her field is. If you can't actually meet the expert first, at least make sure you've reviewed photographs on the expert's website. Almost all experts post an image or two. As wonderful as your expert may sound on the phone, or via email, there is no substitute for your own eyes and what your common sense will tell you upon actually seeing the individual.

For example, an expert in the entertainment industry can have a contemporary, faddish hair style, wear black T-shirts under their jacket, be flamboyant in gesture and mannerisms, and yet be completely credible to jurors as such. A physician with the same get-up is likely to be distrusted and regarded as highly suspect in the credibility department.

Certainly, experts can be encouraged to dress differently, wear their hair differently, and so forth, but it is much easier on you if you don't have to spend precious time or effort on such matters. Behaviors such as gestures and mannerisms are much more difficult to change.

2) Make sure your expert's speech and speaking style is juror-sympathetic

Many experts spend the majority of their time in laboratories, in the field, or buried under masses of written material. These are not conducive to sophisticated or even just effective oral presentation. Given the sound-bite approach television takes to what people say, jurors are accustomed to hearing sound-bite style descriptions from not only actors portraying experts in shows, but also from real experts being questioned on the news and the like.

An expert, who cannot convey his or her expertise in anything other than jargon ridden, convoluted sentences which on the average, represent an entire paragraph each, will not sway the jurors. The expert will lose the jurors somewhere after the second word of jargon or the middle of the sentence, whichever comes first. Unfortunately, an expert's written report does not necessarily reflect his or her speaking style. It is unwise to rely on such in hiring your expert.

Ask your expert an open-ended question that will give you the opportunity to hear the expert discourse on a subject. Listen with the uninformed ears of a juror, as best you can. If you hear sentences inclusive of more than one or two thoughts (at the most!), this may not be the expert for you. If the expert is not able to easily include brief layperson's descriptions of technical terms or processes as they speak, the expert will either need serious prepping or it's time to consider seeking out a different expert.

An expert who mutters, or who is overly ponderous in delivery, an expert who has long pauses between thoughts, an expert who has rapid fire delivery, or who strings all his words together, all of these render communication difficult and ineffective. The jurors will not make the effort to understand the expert after just a few minutes.

3) Make sure the expert has good eye contact

An expert who cannot engage good eye contact with you as he or she speaks, is not likely to be able to engage good eye contact with jurors. Eye contact is critical to jurors' accepting the sincerity and believability of any witness. An expert who stares at the ceiling to collect his or her thoughts, or out into space for long periods of time as the expert mulls something over, is not going to find favor with jurors.

Yes, these behaviors are “fixable,” if the expert is willing to work on them, but that's a big “if.” Again, it's much easier and less time-consuming for you to select your expert with these thoughts in mind rather than be faced with endless prep sessions.

4) Make sure the expert can work with visuals

Experts must be able to easily and comfortably refer to and work with charts, diagrams, drawings, models, evidence, “Day in the Life” and all other such visual aids. Don't assume your expert knows how to do this. Either find out before hiring the individual by asking them to demonstrate something, perhaps on a model or chart, or be sure to include this type of preparation during your pre-trial sessions with the expert.

All of the above guidelines are true regardless of the nature of the case or which side you represent. When it comes to an expert's persuasiveness in the realm of damages, there are specific guidelines for plaintiff and defense's experts, respectively

5) Presenting Damages: Plaintiff's expert

Plaintiff's expert must be able to talk about pain and injury in words the jurors can relate to. Jurors must be able to relate to a plaintiff's pain in order to award the damages you would like. This is often a problem, because these experts are used to talking in objective technical terms, the terms used between scientists. To be effective in the courtroom, experts must be able to both describe the situation in objective terms, and in more emotional, descriptive terms.

For example, a neuropsychologist in describing axonal shearing, will describe the process in technical terms, but then must be able to describe what the experience is like for the person suffering from such. “Memory loss” is nice, but “can't remember more than a couple of words at a time” or “can't repeat back to you a question you just asked him,” is much more gripping for a jury. Your economic or Life-Care expert must then address the need for life care using those experiential terms in substantiating the need for various levels of care.

This is true in every case. It is your job to work with your expert so that you are assured that he or she can convey the plaintiff's experience, even if the expert is only conveying the generic experience of anyone suffering from the condition.

Be aware of terms of art which have a different meaning for jurors. “Discomfort,” which physician experts regularly use as a word for pain, doesn't mean PAIN to jurors. It means something much less important, for example, “discomfort” is what jurors mean when they've had a little too much to eat, “pain” is what happens when you're suffering from food poisoning. Physicians will readily refer to anything from what the patient is experiencing during food poisoning to the aftermath of back surgery as “discomfort.” This is but one word among many to watch out for.

6) Presenting Damages: Defense's Expert

Defense's expert will usually do best in appealing to logic, whether that's the logic of accident/injury reconstruction, or the logic of a different life-care plan.

Defense's expert will fare well with the jurors if he or she presents an alternate damages point of view from an educational perspective, rather than a defensive or argumentative one. This also saves defense expert from coming across “cold” or “unfeeling.” Educating can be done with considerable compassion.

That means that it is important, in selecting a defense expert, that you choose an individual who can remain calm, preferably have a soothing or pleasant voice, who can think fast on his or her feet, and who uses sound logic in presenting his point of view.

Attorneys may spend months carefully crafting their case only to see their expert blow the case apart at trial with an unconvincing presentation. With proper expert witness selection and preparation, your experts will play a huge role in successfully moving your case forward.

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