Attorneys with substantial trial experience understand that choosing the right expert can be challenging. You need to select someone who is smart and engaging, with the requisite qualifications. Yet even when you have checked off each of these boxes, your expert may still fall flat in the courtroom. This is why it is critical that you evaluate not only your expert’s qualifications, but also the expert’s “fit” and how he or she will be perceived by jurors in your forum. Doing so will help you prepare your expert to be as effective as possible in communicating the evidence you need the courtroom to hear.
Picture this scenario, loosely adapted from a real case: You are an attorney in a large metropolitan city on the East Coast. You’ve been tasked with defending a manufacturer facing claims that its highly technical mechanical product is defective. Your research and experience in similar cases has led you to select an Ivy League–educated expert witness with multiple advanced degrees and in-depth experience with your particular product and its functionality. You’ve used this expert before in other cases with great success, so you know he will easily understand the issues in your case and will be well-spoken at trial. This expert, in fact, is very comfortable with the physics of how this product works, and understands the complex science behind it. In other words, he seems like the perfect fit.
Now picture your forum. This case isn’t pending in your home jurisdiction, where you can expect a jury pool filled primarily with diverse, white-collar professionals who hold a college degree or more. Your forum is a much smaller, rural town. The jury pool will consist primarily of blue-collar workers, likely associated with the nearby military base or oil fields, and people who work in outdoor adventure jobs. These jurors are likely to have a high school degree and probably have taken some college courses, with only a few having advanced degrees. In other words, you can expect to find a pool of individuals who work hard and live close to the land . . . and your local counsel tells you to expect that they will harbor a healthy suspicion of outsiders.
Jury tendencies aside, you aren’t concerned because you have great confidence in your case and in your expert’s capabilities. The allegedly defective product is a complex piece of machinery, but you have already selected the leading expert in this field. He examined all of the evidence and was able to describe to you in painstaking detail how the product likely functioned during the incident in question. He has numerous detailed demonstrative exhibits ready to show to the jury that will help him explain why the product was not, in fact, defective.
Now fast-forward to trial. Everything has been going very well, and you’re ready to call your expert to the stand. He walks in looking like a million bucks—wearing a finely tailored suit, with perfectly coiffed hair, and carrying an expensive leather briefcase. Your expert begins to talk. He’s doing a good job of explaining the evidence and the extensive testing that he performed for the case. But as you look to your right into the wood-paneled jury box, you notice many of the jurors shifting uncomfortably in their seats. Their eyes are glazing over. Many of them aren’t even looking at your expert while he’s testifying. What’s going on? You realize that your high-powered expert is not connecting with the jury.
So what happened? This expert has testified for you several times before at trial, involving the same or similar products, and you’ve never had a problem like this. Unfortunately, retaining an impeccably credentialed and brilliant expert doesn’t mean that the expert is right for this particular case.
In this example, the jury was unable to identify with the expert. Maybe he came across as elitist and arrogant. Maybe the jury was put off by his constant use of ten-dollar words, his fancy suit, or his upper-class accent. More likely, it was a combination of these factors. But what does this mean—should you opt for an expert witness who isn’t as polished? Or has less experience? That doesn’t have to be the answer if you are cognizant of the issue and you take the time to properly prepare your expert for trial.
Importantly, preparing your expert for trial is not limited to ensuring he or she knows the facts, the applicable science, and all relevant evidence. Part of your job as an advocate for your client is to ensure that the expert you choose can effectively communicate his or her knowledge to the intended audience: the jury.
Luckily, the hypothetical scenario above did not unfold as described. Instead, counsel took a different approach to presenting this expert to the jury. The attorneys in that case were well acquainted with the expert, having used him in the past and having spent many hours with him at inspections and during testing of the product at issue. This familiarity allowed the attorneys to realize critical information that went beyond the expert’s general expertise. Specifically, the attorneys understood that this expert was a cultured individual who had become accustomed to a high standard of living that was afforded to him because of his many years of hard work as an established consultant in his field. These characteristics could make him seem a little pretentious and aloof. This knowledge became critical in assessing how the expert would appear to a less sophisticated jury.
Several weeks before trial, the attorneys made sure that they spent time during the expert’s preparation delving a bit more into his personal experience. They learned that the expert had paid his own way through college by working nights at a local garage. And that he continued to work two jobs throughout graduate school in order to pay for his education. The attorneys also learned that the expert had rebuilt his first car out of scrap parts. In essence, they learned that the expert had worked hard for everything he’d accomplished and had never had anything handed to him out of privilege.
As a result, the trial team did not begin its presentation of the witness with a recitation of his impressive credentials. Instead, they tailored their opening questions to the expert in a manner designed to elicit his more humble beginnings. The attorneys could see the jury nodding as the expert described how he struggled to stay awake during his early morning engineering classes, and laughing along as the expert told a story detailing how he tried in vain to clean all the grease from under his fingernails before his very first job interview.
In this case, the trial team understood that the only way this jury would identify with the expert and, hopefully, find his opinions credible would be to help the jurors understand the expert’s background as a way of relating to him. It only took a few questions, but this approach allowed the attorneys to humanize the expert and paint an accurate picture of him that was relatable and likeable. It is human nature to look for similarities in others so that you can identify with their experience. In this situation, it was an invaluable step taken by the trial team that helped to ensure that the jury paid attention and truly heard the expert’s testimony, instead of taking one look and immediately writing him off as just another three-piece suit.
Heather Russell Fine is a member of Griesing Law, LLC based in Philadelphia, Pennsylvania.
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