{"id":239,"date":"2013-04-01T02:58:14","date_gmt":"2013-04-01T02:58:14","guid":{"rendered":"https:\/\/www.tunno.com\/wordpress\/?p=239"},"modified":"2015-07-02T21:06:23","modified_gmt":"2015-07-02T21:06:23","slug":"preparing-expert-witnesses-and-fact-witnesses-too-part-ii","status":"publish","type":"post","link":"https:\/\/www.tunno.com\/wordpress\/preparing-expert-witnesses-and-fact-witnesses-too-part-ii\/","title":{"rendered":"Preparing Expert Witnesses (and fact witnesses too) – Part II"},"content":{"rendered":"

Part II introduces the concepts of structure, language, style, and form<\/strong> as they pertain to effective testimony and, together with answering technique, upon which all my recommendations and techniques are built.<\/p>\n

Structure \u2013 Think Circular, not Linear<\/strong><\/p>\n

Since the structure of the testimony cannot be controlled in cross-examination, this relates to direct examination only. \u00a0The structure of the direct examination is vital and where you may have a witness that is less than charming, dynamic, or even likable, factors you have less control of, you do have control over the structure of direct examination \u2013 so take it.<\/p>\n

The overarching concept to impress with an expert is the image of teacher<\/strong>.\u00a0 Teaching is all about retention, which is driven largely by structure (It is also a factor of \u201cform,\u201d which will be given consideration later).\u00a0 The teacher image helps avoid the image of \u201cadvocate\u201d and complies with one of the most frequent and positive comments jurors express about their trial experiences \u2013 \u201cthey learned something.\u201d\u00a0 Not surprisingly, the teacher concept carries with it the obligation to teach.\u00a0 Attention to structure must begin immediately after the witness is sworn.<\/p>\n

Following the witness\u2019 background and qualifications, ask a question that prompts a brief discussion of the assignment, such as \u201cWhat were you asked to do in this case?\u201d\u00a0\u00a0 This allows the witness to include in the answer words such as \u201cinvestigate,\u201d \u201canalyze\u201d and \u201ccompare\u201d \u2013 words that connote a scientific and objective approach to the task \u2013 an approach that does not consider a desired end result.<\/p>\n

The above answer naturally leads to a question regarding procedures.\u00a0 The answer to that question should be in the form of bullet points.\u00a0 Depending on the length and complexity of those procedures, consider creating an exhibit listing them in the order taken.<\/p>\n

Now the witness is ready for the $64,000 question.\u00a0 \u201cHaving completed the list of procedures, what did you find?\u201d\u00a0 The witness will now be creating the first headline<\/strong>.<\/p>\n

Keeping in mind that jurors will most often forget the details (though they may remember they existed); the goal is to create headlines.\u00a0 During the course of the testimony, the jurors will see the supporting details, but it\u2019s the headlines they will remember and they will remember them in large part through repetition.<\/p>\n

What you will have at this point in the process is the basic skeleton of your direct-examination structure, which consists of a comparison of the procedures with the finding(s).\u00a0 This process will reveal the details of each procedure and its contribution to the ultimate conclusion.\u00a0 The conclusion is the headline, which this structure allows to be repeated many times along the way due to its circular nature.<\/p>\n

Jurors not only need to understand how a point fits into the big picture, but the importance or relevance of that point to the ultimate conclusion.\u00a0 Establishing the relevance of the point must come first.\u00a0 This will motivate the jury to listen.\u00a0 If the jurors are left with the task of creating their own hierarchy of relevance, your point is at risk.\u00a0 They either won\u2019t do it or they might get it wrong.\u00a0 Do the work for them.\u00a0 A graphic representation of the process reveals the circular structure.<\/p>\n

\"\"<\/a><\/p>\n

The above represents the teaching of a particular point.\u00a0 It also complies with the principle of primacy and recency<\/strong>.\u00a0 We tend to remember most what we heard first and last, and not so much what comes between them.\u00a0 The process of persuading jurors of the ultimate conclusion is one of continuing the above pattern, taking time to explain how each key point fits together and contributes to the ultimate conclusion.<\/p>\n

\"\"<\/a><\/p>\n

More \u201cChunks\u201d of Good Structure<\/strong><\/span><\/h1>\n

In addition to the primacy\/recency effect, attorneys and witnesses should design direct examination around three additional principles;<\/p>\n

1.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Repetition<\/strong><\/p>\n

2.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Chunking<\/strong><\/p>\n

3.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Stair stepping<\/strong><\/p>\n

Repetition was mentioned above in connection with the circular nature of good structure.\u00a0 It is also well known, so need to belabor it here.\u00a0 Chunking is a psychological phenomenon that describes the way people learn.\u00a0 Briefly stated, it means we can assimilate a \u201cchunk\u201d more readily than the whole.\u00a0 It is how, for example, we learn phone numbers.\u00a0 We memorize them in groups of three and four; area code, prefix and the four-digit number.\u00a0 Even if phone numbers weren\u2019t written that way, we would still learn them by breaking up the string into chunks.<\/p>\n

As described in the discussion of circular structure above, each chunk must start with the establishment of its relevance.\u00a0 It must also be \u201cbite-sized,\u201d particularly when it comes to complex material.<\/p>\n

Complexity of the subject matter also drives the need for \u201cstepped learning.\u201d\u00a0 The concept is simple; educate (and elevate) the jurors to the highest necessary level of understanding one step at a time.\u00a0 We all learned math in this fashion.\u00a0 Our progression from simple arithmetic to trigonometry and calculus was by means of small steps that included fractions, decimals and simple algebra.\u00a0 No step can be too high for the jurors to reach or they will be left behind.\u00a0 Keeping in mind a concept from Part I of this series, if the jurors don\u2019t understand the witness, the problem, as they see it, is with the witness and negative perceptions result.<\/p>\n

Language<\/span><\/strong><\/span><\/h1>\n

Jurors have told us they don\u2019t appreciate jargon.\u00a0 The obvious solution is to use it as infrequently as possible and to explain it when it must be used.\u00a0 The role of language in expert witness testimony, however, goes well beyond addressing that single issue, and do not assume that avoidance of jargon necessarily means adopting a \u201cfolksy\u201d approach.\u00a0 Only a targeted jury research project, in the venue, would determine to what extent that approach is valid.<\/span><\/h1>\n

Consider the issue of relevance.\u00a0 One of the most powerful methods for attributing relevance to a point is through co-orientation.\u00a0 Co-orientation is the process of establishing a common ground with jurors so that they may then be moved to a new position<\/strong>.\u00a0 It is accomplished by means of anecdotal references and analogies.\u00a0 Using those tools, the witness compares the point at issue to something perhaps from everyday life, or at least a reference common to most.\u00a0 This serves several purposes.\u00a0 The witness bonds with the jurors, promotes the image of teacher, raises their comfort level with respect to the issue at hand and ultimately may bring them in tow regarding the conclusion.<\/p>\n

Many years ago I was a member of a research team that conducted a weeklong mock trial.\u00a0 Money being no object for this particular piece of research, we incorporated what is known as a real-time response system.\u00a0 You have probably seen them used in focus group studies conducted in connection with the recent general election.\u00a0 Each juror holds a device with a dial that allows them to respond positively or negatively to what is being seen and heard at the moment.\u00a0 A computer compiles the data and creates an average trend line that is displayed on a backstage monitor on a moment-by-moment basis and is recorded on video for later analysis.<\/p>\n

One of the most impressive revelations about that system was the showing of jurors\u2019 responses to the use of anecdotal experiences and analogies.\u00a0 In every instance, the trend line would immediately make a positive jump.\u00a0 The only other instance when the trend line would consistently move sharply in the positive direction was when the witnesses offered conclusions and perspectives; words to the effect, \u201cSo, what that means is\u2026,\u201d confirming that headlines make the impact.<\/p>\n

Style<\/span><\/strong><\/span><\/h1>\n

Think of style (a.k.a. demeanor) as all of the non-verbal elements.\u00a0 It\u2019s not the words; it\u2019s how you say them.\u00a0 It\u2019s your facial expressions and the gestures you use while communicating.\u00a0 It\u2019s your posture and the look in your eye – all those extremely important elements in the arts of teaching and persuading.<\/p>\n

We all remember favorite teachers from school.\u00a0 I\u2019m willing to wager none of them were dull, lacking energy, unimaginative or timid.\u00a0 So it is with good expert witnesses.<\/p>\n

I was in my hotel room in Minneapolis years ago during a trial and was channel surfing on the TV.\u00a0 The population of the Minneapolis area is known for its relatively high level of education and I happened upon a telecast of the area\u2019s Teacher-of-the-Year Awards.\u00a0 I tuned in just in time to see the Oscar-like announcement of the winner and his acceptance speech.\u00a0 In that speech, he said, \u201cYou can entertain without educating, but you cannot educate without entertaining.\u201d<\/p>\n

I would add to that observation the concept of engaging.\u00a0 You cannot educate or persuade and audience without engaging them.\u00a0 Non-verbal communication plays a huge role in doing just that.\u00a0 The following is a short list of the most important non-verbal traits of an expert witness:<\/p>\n

    \n
  1. Posture<\/strong> \u2013 Sitting erect and forward in the witness chair creates a look of confidence. There should be no contact with the back of the chair.<\/li>\n<\/ol>\n
      \n
    1. Eye Contact<\/strong> – Having strong eye contact with each member of the jury contributes to believability.\u00a0 Eye contact is the single-most important non-verbal element of communication with respect to believability<\/strong> and it\u2019s pretty difficult to ignore someone who\u2019s looking you straight in the eye.\u00a0 A client once told me that a post-trial interview with jurors determined the entire case was decided by this one issue.\u00a0 The outcome turned on a lone juror\u2019s decision, who said afterwards, \u201cThat one witness looked me in the eye and the other one didn\u2019t and my Daddy told me never to trust anyone who doesn\u2019t look you in the eye.\u201d\u00a0 Enough said, but eye contact with the jury should be reserved for answers to open-ended questions (longer, more narrative responses), to avoid looking as though the witness is watching a ping-pong match.\u00a0 More on this in Part III.<\/li>\n<\/ol>\n

      To facilitate eye contact equally with counsel and jury, I advise the witness to turn the chair so as to bisect the angle between counsel and jury.\u00a0 This puts the body in a position where making eye contact is just as easy in either direction.<\/p>\n

      \"\"<\/a><\/p>\n

      Many witnesses are reluctant to make eye contact with the jury, preferring the comfort zone of the client attorney.\u00a0 The chair position helps overcome this tendency, but it is often not enough.\u00a0 If you are examining a witness with this trait, pick appropriate moments to prompt the witness, such as with the question, \u201cWould you please explain that point to the jury.\u201d\u00a0 During preparation sessions, the witness should be told when he hears that question it means he\u2019s been ignoring the jury.<\/p>\n

        \n
      1. Gestures <\/strong>\u2013 Gestures serve two purposes, they help create visual images (the importance of which you will note shortly) and they dissipate nervous energy.\u00a0 In that way, they turn a negative into a positive.\u00a0 (Also on the problem of nervousness, a large gulp of very cold water will tamp down the adrenaline for a brief time, making it a good way to start the examination.)<\/li>\n<\/ol>\n
          \n
        1. Volume <\/strong>\u2013 Ideally, the witness should speak with enough volume so as not to need the microphone.\u00a0 Volume from a microphone is just that, volume.\u00a0 Volume created without a microphone takes on a different quality.\u00a0 It is energy.<\/li>\n<\/ol>\n

          Energy = Conviction = Credibility.<\/strong><\/p>\n

            \n
          1. Tone<\/strong> \u2013 The power of this factor is difficult to explain without demonstrating, but suffice it to say that words often get their meaning from how they are delivered.\u00a0 A witness answering \u201cyes\u201d to a cross-examination question, for instance, can communicate through a matter-of-fact tone that the point of the question was insignificant and, therefore, the admission was meaningless.\u00a0 The same one-word answer, delivered in a tired, muffled tone, particularly if accompanied by downcast eyes and slumped body posture means the cross-examining attorney just scored a major blow.<\/li>\n<\/ol>\n
              \n
            1. Consistency<\/strong> \u2013 The witness should appear the same during cross examination as during direct.\u00a0 Same posture, same energy level, same level of confidence, demeanor, attitude, etc.\u00a0 Perceived differences in performance, on these scales, between direct and cross-examination lead to credibility issues with the jury.<\/li>\n<\/ol>\n

              Form<\/span><\/strong><\/h1>\n

              This is where exhibits come into play.\u00a0 Various studies have confirmed that we retain much more from what we see than from what we hear and retention climbs dramatically when the two are combined.<\/p>\n

              \"\"<\/a><\/p>\n

              It\u2019s more than a matter of retention; it\u2019s also a matter of motivating the jurors to learn the material.\u00a0 They want to learn, but they want it to be somewhat enjoyable and not too much work.<\/p>\n

              Trials are becoming increasingly complex, outpacing the ability of the average juror to comprehend the material.\u00a0 The material, therefore, has to be converted to a form suitable to the jury.\u00a0 That means well-designed exhibits, both evidentiary and demonstrative. \u00a0I caution the reader, however, to rely too heavily on exhibits, especially high-tech exhibits.\u00a0 The most persuasive exhibit in the courtroom should be the witness.<\/strong><\/p>\n

              See Part I of this series in \u201cPrevious Posts\u201d and look for Part III, dealing with answering technique, in the near future.<\/p>\n

              For more on Taking the Stand \u2013 Tips for the Expert Witness<\/em><\/strong>, go to the \u201cpublications\u201d tab.<\/p>\n

              Also, check out my new book, Fixing the Engine of Justice:\u00a0 Diagnosis and Repair of Our Jury System<\/em><\/strong>.\u00a0 Select the<\/span>\u00a0\u201cJury Book\u201d<\/a> tab at the top.<\/p>\n

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