March 05, 2013 Articles

Effective Communication in Expert Testimony

A trial consultant explains how to coach expert witnesses in communicating with jurors

By Denise Montiel

In mathematics, an X factor is an unknown but vital quantity that becomes known only after a prescribed process is followed. In the world of expert testimony, this indefinable quality is effective communication. Your expert knows her stuff—but can she communicate that information effectively in ways that a layperson can understand, absorb, and remember? This article provides guidelines for turning an expert’s data, analysis, and conclusions into a concise but effective presentation in any area of expertise.

Beware of the “Do-It-Yourself” Approach

If your expert declares that she has put her own presentation together, approach this cautiously. Experts are obviously the best source for content, and they should always participate in the presentation development process. However, experts approach the development of a visual presentation just as they do any other engineering, scientific, or economic problem—without regard to ensuring that they translate their complex data into effective communication. I have seen some expert-developed presentations that are clear and effective. However, the vast majority need the critical eye of an experienced creative consultant.

The good news is that by taking the time to develop an effective courtroom presentation, a technical expert can capitalize on his or her natural teaching skills to educate the jury, foster credibility, and capture the advantage. My trial experience confirms that the expert who takes the time to teach the jury what they need to know so that the jurors can make a sound decision has a distinct advantage. However, letting an expert show up to trial with his or her own slide presentation that hasn’t been vetted by the trial team or your creative consultant is taking a big risk. This is because experts typically make one of two critical mistakes:

Too technical. Experts are so well acquainted with the topic that they often skip critical communications steps and dive right into the data—resulting in dense, formulaic presentations that make perfect sense to them but are incomprehensible to laypeople.

Not technical enough. Experts are often working against the perception that typical jurors are not “technical” and won’t ever really understand complex scientific, technical, and financial concepts. This misguided view may tempt an expert to bypass the effort to teach important concepts and leapfrog right to his or her conclusions. Unfortunately, this temptation often leaves the expert with an uphill battle toward credibility. Jurors are not likely to agree with your expert’s conclusions if they don’t understand how your expert got there. This is especially true when the opposing expert provides a logical road map for them to follow.

Avoid Minimizing Technical Aspects of the Case

Countless times I have witnessed an attorney or expert begin an explanation of the facts with an empathetic apology, such as “I know this is confusing” or “You’ll hear a lot of technical mumbo jumbo.” Don’t give in to this temptation! It primes your jurors to tune out because you have just told them that they are probably not going to understand it anyway. Instead, take the time to build an effective graphic tutorial, then preface your presentation with positive expressions such as “This process is actually just a series of simple steps; let me walk you through it.” Let your jurors know that the complex facts are actually easy to grasp at a “bottom-line” level and that you and your expert will be the ones to help them best understand what they need to know.

Attorneys or experts have told me many times that we need to “dumb it down.” I dislike this phrase because it presumes that it is the listeners’ responsibility to get what you’re trying to convey and that if they don’t, then they are not intelligent enough. This is dangerous thinking. My experience is that most jurors want to understand—and try to understand—the topic at hand. It is just as frustrating for them as it is for you when you’re trying unsuccessfully to make a point. They may not have the education or experience of your expert, but they do not appreciate being patronized. The challenge is yours to make it understandable to laypeople, and it is a challenge that can be met with good information design.

Translate Data into Communication

I think the graphics that were put on by the defense were better than they were by the plaintiff. It was good to have a mental picture to go with the facts. The defense expert’s presentation was impressive to me because she had neatly manicured charts and pictures that left a clear impression, while the plaintiff just gave us numbers.

This quote from a posttrial juror interview underlines a key communication principle: Don’t make them work for it. Too often I have seen an attorney or expert present data, such as numbers or graphs, in raw form—with the expectation that explaining it will make it more understandable. It doesn’t. Take the time to work the data into an effective communication so that you don’t lose your audience. In developing your tutorial presentations, review them with a critical eye: Is this just data? Or has it been translated into communication that works?

The most effective way to translate data into communication is to follow a tried-and-true process: storyboarding. Develop an outline for the expert’s presentation that walks through the communication steps needed for clear understanding. What does your audience really need to know? Don’t the jurors need to understand how the component works before they can understand how it failed? Do they need to see a summary of how the promises made in the contract relate to each other to believe how unfairly your client was treated?

And, just as important, what can be left out? Is it interesting to the expert but irrelevant to what the jury needs to decide? Is it a calculation that means little at the end of the day? Taking the time to lay out these issues is a critical part of developing a great presentation. If you can effectively write it, then you can effectively show it.

Design for the Courtroom, Not the Showroom

The courtroom is a specific environment, and your audience is there for a specific purpose. You want your jurors to focus on the substance of the visual, rather than on the graphic design or technology being used. Simplify graphic design elements so that your intended communication stands out, not the designer’s skills. Clutter, confusion, and “slickness” are failures of design, not failures of information.

One concept often lost in the saying “a picture is worth a thousand words” is that graphics can be as harmful as they are helpful. If a design element on your demonstrative has little to do with conveying the point you are trying to make, then it is what I like to call “chart junk.” It may be pretty, but it may also confuse the viewer or obfuscate important information. Moreover, a visually busy graphic may completely undermine the point your expert is trying to make about a simple process. Minimize irrelevant detail and content to ensure that your story is cohesive and leads to a logical conclusion. Clear communication of the information builds your case and your credibility.

Make Technology Work for You

Today’s jurors are more tech savvy and less patient. Your jurors will embrace communication that is presented in a concise, intuitive, and direct manner. Consider this comment from an actual juror after a defense win in a recent product liability case:

The PowerPoint at the end by the defense lawyer was very convincing, organized, and well put together. It helped tie things together so I really liked that one the best. If the plaintiff lawyer had used better demonstratives in his closing, it would have been much better to drive it home and help organize our thoughts. I think it really hurt him that he did not use better demonstratives in closing. It was such a stark contrast between him and the defense lawyer.

The use of computer-based presentation allows you to control the momentum and flow of testimony in a more dynamic, intuitive way. Although board graphics certainly have their place, they don’t allow for the type of integrated delivery that jurors have come to expect. With technology, you can stage your communication in a more dramatic fashion, incorporating all visual elements. It allows you to bring together photos, diagrams, calculations, video, and other components of the expert’s analysis into one coherent, seamless presentation.

Conclusion

Remember that the expert is not only presenting his or her testimony but also establishing his or her credibility. An expert is much more likely to gain the credibility advantage by showing a command of today’s presentation tools and reinforcing his or her work and words with an effective visual presentation that puts the expert in control of the timing, delivery of his or her analysis, and conclusions.

With well-designed demonstratives, you can harness the power and persuasiveness of visual communication to convey critical information, establish credibility, and gain an advantage in the courtroom. The jurors will see you and your expert as the best teachers, and it will naturally follow that they’ll see the case your way. Work with your visuals to make them work for you.

Keywords: litigation, trial practice, credibility, demonstratives, presentation, technology, visuals


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