{"id":232,"date":"2013-03-25T00:51:16","date_gmt":"2013-03-25T00:51:16","guid":{"rendered":"https:\/\/www.tunno.com\/wordpress\/?p=232"},"modified":"2018-09-05T16:41:33","modified_gmt":"2018-09-05T16:41:33","slug":"expert-and-fact-witness-preparation","status":"publish","type":"post","link":"https:\/\/www.tunno.com\/wordpress\/expert-and-fact-witness-preparation\/","title":{"rendered":"Preparing Expert Witnesses (and fact witnesses too) – Part I"},"content":{"rendered":"

In 1996, I published Taking the Stand, Tips for the Expert Witness<\/em><\/strong>.\u00a0 It was written after years of preparing expert witnesses for trial and after conducting many jury research projects and post-trial interviews with jurors.\u00a0 This series examines the same concepts, but with the attorney in mind, who will find most of the tips for effective expert witnessing applies to fact witnesses as well.<\/p>\n

Introduction<\/strong><\/p>\n

One of the most enjoyable aspects of working as a trial consultant has been the knowledge gained from preparing expert witnesses.\u00a0 In my years in this field (24 so far), I\u2019ve learned from experts in such diverse fields as economics, bioengineering, accounting, chemistry, medicine, venture capital, computer sciences, patents, metallurgy and to many others to mention.<\/p>\n

Enjoying this aspect of the work puts me on common ground with most jurors.\u00a0 When asked in post-trial interviews what they enjoyed the most (if anything) about serving as a juror, one of the most often repeated answers is that they enjoyed learning something new.\u00a0 Jurors like to learn.<\/p>\n

Though we may share an appreciation for this aspect of the litigation business, the learning process for me is much different.\u00a0 Depending on the case, I may spend several days with an expert.\u00a0 In the process of helping prepare the expert witness for trial, I\u2019m learning the science or technology involved, how it applies to an issue, and how it was used to form an opinion.\u00a0 I can also ask the witness to contrast his or her methodology and opinion with that of his or her counterpart.\u00a0 In doing so, I can create a side-by-side comparison of two conflicting opinions.\u00a0 It\u2019s an interactive process.\u00a0 I\u2019m able to stop the flow of information at any time to get clarification.\u00a0 I can ask the witness to revisit the same subject as many times as necessary for my understanding.\u00a0 In effect, I have a private tutor and I am in control of the learning process.\u00a0 In addition, I\u2019m highly motivated to learn.<\/p>\n

Contrast the above setting with the world of the jurors.\u00a0 The process of absorbing all the information they require to make an informed, responsible decision must be accomplished in real time.\u00a0 There is no \u201cpause\u201d or \u201crewind\u201d button.\u00a0 They can\u2019t ask questions.\u00a0 They can\u2019t even indicate when they\u2019ve missed a point and it may be days or weeks between testimonies of opposing experts, so a side-by-side comparison isn\u2019t practical.<\/p>\n

As for motivation, they\u2019ve been drafted by the judicial system.\u00a0 Their personal and professional lives have been disrupted.\u00a0 They have nothing directly to gain from the dispute one way or the other.\u00a0 Their reward is a paltry sum of money and lunch.\u00a0 Yet, as we all know, they\u2019re the most important people in the courtroom.\u00a0 It\u2019s no wonder that the most often mentioned juror pet peeves are boring testimony and wasted time.<\/p>\n

Because they are the most important people in the courtroom, this series of articles will focus on the needs and desires of the jury and how to comply with them.\u00a0 The foundation for meeting those expectations lies primarily in good teaching skills.\u00a0 Good teaching skills are good communication skills.\u00a0 The courtroom is an environment unlike any other.\u00a0 For that reason, many of the communication skill you will learn in this series are specific to that environment.<\/p>\n

The following quote from Davis Ford, an expert witness, summarizes the differences between expert witnesses and trial attorneys, and as you (lawyers) are the one\u2019s primarily responsible for preparing expert witnesses, it is important to know the differences between you and them.<\/p>\n

As an engineering graduate student, I used to seek seclusion at the University of Texas Law School library in order to study, armed with a calculator, integral calculus tables and other supporting documents.\u00a0 With this arsenal, I settled down at the table, using two to three times my allocated space.<\/em><\/p>\n

I was amazed at the law students whose study aids consisted only of a felt pen and piles of books.\u00a0 I calculated they read<\/em>.<\/p>\n

I use this illustration to show that our formal training is basically different.\u00a0 Moreover, attorneys are basically taught to think and speak at the same time, while engineers, for example, are not.<\/p>\n

Jury Selection<\/span><\/strong><\/h1>\n

Since these series properly places emphasis on the needs of the jury, it is important to know as much as possible about the typical jury.\u00a0 \u201cTypical jury\u201d might be considered by some to be an oxymoron, since every jury is made up of different individuals; however, the dynamics of the jury selection process tends to produce juries with similar qualities.<\/p>\n

Experts need to be grounded in the notion that the only people in the courtroom that matter are the judge and jurors, particularly the jurors.\u00a0 This should establish the foundation for everything they say and do.\u00a0 It should drive the design of demonstrative exhibits, the choice of language and the style of delivery.<\/p>\n

In building this foundation, I teach experts that the jury selection process often has two results.\u00a0 I\u2019ve labeled them, \u201cThe Mush in the Middle\u201d and \u201cTrial by Postal Worker.\u201d<\/p>\n

\u201cThe Mush in the Middle\u201d is a somewhat pejorative reference to what is left in the jury box following excuses for cause and peremptory strikes.\u00a0 I wrote extensively on this phenomenon in my book, Fixing the Engine of Justice:\u00a0 Diagnosis and Repair of Our Jury System<\/em><\/strong>.\u00a0 Here, I\u2019ll summarize the effect as follows:<\/p>\n