Tips for Using Experts to Build Your Narrative at Trial

As trials frequently feature two different, competing narratives describing events, it is important to make your client’s story as compelling as possible. The best attorneys tap into their experts’ knowledge to create a solid foundational context for their story. This is reflected in the following observations in Round Table Group discussions with experts, available online:

Attorney Dr. Chris Mammen, of Womble Bond Dickinson, has noted:

As a philosopher by training, I can’t claim specialization in any particular scientific field, but I think that has helped because, particularly in litigation, so much is about telling the story of the dispute and reducing the complex technology to something understandable by the judge and by a lay jury.

Early in his career, Matthew Morr of Ballard Spahr discovered how integral experts can be in defining the setting of the story. Furthermore, he has witnessed how the best experts keep up with the narrative as it evolves during trial:

The first expert that I worked with was Bill Carey […] on lost profit cases. He was a certified public accountant. [… ] In his spare time [he] judged mock trials, took continuing legal education courses on persuasion and was well-read on persuasion and how to talk to judges and juries, and he worked a lot on his writing. […] He did a good job of putting together narratives and stories. [Early] in my career I had the opportunity to work with him on some cases that went to trial and he was a huge asset. Not only was he an expert in the field, [..] but he also had the value add of being able to help us narrow down our themes. He would watch our opening statements to make sure they tracked with what he said. For folks that have been to trial, there is a process where you start narrowing down themes and phrases. He was a big help in doing that. As a young attorney, it was a great experience as I got to learn from this expert, and we worked well together. When I contrast that to some experts I have seen on the other side [..] that is not the case. What they are doing is not consistent with the persuasive story the lawyers are trying to put together.

Steve Haas, an expert witness, gave an example of how expert witnesses can be helpful in identifying where opposing arguments may have holes as you create your alternative narrative:

I worked on a case where there was an accusation of financial impropriety against a brand [...] Prior to my conversation with counsel initially, I read the complaint and the rebuttal to it. During my first conversation, they asked “What do you think of it?” I said, “This complaint was written by someone who has no understanding of how retail works. Everything outlined that they are claiming as some misstep or misdeed is absolutely done by every brand and every retailer every day of the year.”

Experts can also tell you where your arguments have gone wrong. Expert Craig Schlumbohm has said:

If my lawyers do not know something or I think that they are cruising for a bruising in a case [...] as quick as I can report that information to them the better, so we do not find ourselves down the road eight months to a year later fighting a really bad case.

Experts can make some of the most complex chapters of your presentation come alive, but most require assistance in understanding the big picture to stay on track. Brian Weinthal, then with Burke, Warren, MacKay & Serritella, said:

I find so many people who work with experts and put them in this box where they only talk to them once a week on Tuesday and they only talk about the 'Smith' report, which is what they gave me to look at. We cannot silo them and put them in a vacuum like that. The new federal rules give more freedom for attorneys to speak and converse with experts [than] when I started doing this [...] It used to be that any document, any wisp of anything you had, immediately had to be turned over to an expert and the other side. [The federal rules have evolved since then.] There is more freedom for attorneys to communicate with experts about theory and about what their actual views of a case are. If you are not maximizing your time with an expert, to explain to them their role and what they are going to do, you are just letting the best opportunity to sell a persuasive part of your case go by. I see people spend tons of time with lay witnesses and go through this cursory analysis with the expert thinking, well, you are an expert, so you should be able to just deliver what it is you are going to deliver in a persuasive way. It cannot work like that. You have to include them as if you are preparing a lay witness. It is the same kind of theory.

For your client to have a successful outcome, the judge and jury must understand and believe your story. It is worth both your time and the expert’s time to make sure everyone understands the context from the beginning to the end, follows the same script, and knows their roles. It is easy to get distracted by other important litigation tasks, but don’t cut corners when spending time with your experts.