Friday, June 27, 2014

Qualify Your Expert Without Putting the Jury to Sleep.

What is the most boring portion of any trial? I’ll give a hint:

Imagine You are a Juror . . . 

A juror summons holds you prisoner for a civil trial. The witnesses have ranged from personable to downright boring. The plaintiff now calls a witness whose suit has a silk sheen showing it is more expensive than even the defense attorney's suit. His hair is immaculately styled. Unlike the other witnesses who were nervous when called, he exudes an air of confidence when he enters the courtroom. Unlike the other witnesses who seemed lost in the unfamiliar courtroom, he knows where to go to be sworn in, who to face, how to act.  He carries a box full of paper to the witness stand. You think, how long will it take to work through all that paper?

The plaintiff’s attorney first question to this witness seeks strange to you, "Please describe your educational background."  
The witness turns to the jury and smiles showing perfect teeth. He recites a list of prep schools, colleges and graduate schools. He talks about his degrees and expounds on his impeccable pedigree – none of which you have. This witness really enjoys telling you that he’s smart. 

The plaintiff’s attorney asks another question. "Have you published any books or papers?" Again the witness pivots to face you and smiles before beginning his answer. You pretty quickly understand, "This guy would never talk to me at a party." The longer he talks about himself, the more you dread having to listen to him. Forty-five minutes pass and finally the attorney asks, "Sir can you tell us how the accident happened?"

What is the Most Boring Part of Any Trial?

I pose my question again: What is the most boring portion of every trial? What is the phase of trial that most separates the jury from your case? During what part of trial does the jury least understand what the trial attorney is doing? It is the snore-fest called, "Qualifying an Expert."

I was subjected to this torture so many times that I adopted a different approach. I noticed jurors were just as bored as I was while my opponent qualified his expert. Unfortunately, I had already presented several expert witnesses during that trial and was oblivious to the effect it was having on the jury. I set about looking for a different way to present experts. Fortunately, television presented an answer. It wasn’t a method embedded in the plot, instead it was a marketing tool.

The Hook – How Television Keeps You From Touching That Dial

I noticed that at the end of a television program, the station did not play commercials. Instead, they played a short segment of the upcoming program that "hooked" the audience. The reason the programs are set up this way is to create interest so you remain with the program during the standard opening for the program, and the first round of commercials. A dead body, or a personal conflict, or a problem is thrown at you to get you thinking, "I need to know how she’s going to get out of this." It’s marketing. It works. If the hook is good enough, you will not change the channel even if it means missing your favorite program.

The regular presentation at trial does not use the hook. Instead of presenting something in which the jury may be interested at the beginning, the ordinary trial lawyer starts running the "credits" at the beginning of the show. Not a very deep hook. Do you think the jury would change the station if they could?

How Can We Use the Hook at Trial?

I developed a way of presenting experts that is loosely based on the "Hook." There may be a better way to do it, but this is what I am doing now.

I try to teach the jury as much as I can because most people have a natural curiosity and find learning interesting. When I first call an expert to the stand, I want to teach them what an expert is and why this witness is on the stand. I do this by asking:

"What is your occupation or vocation?"

"Can you describe what that is?"

Now comes the hook:

"Have I hired you to analyze aspects of this case and share opinions with the jury based on your expertise to assist the jury in ruling in this case?"

I’m introducing why the witness is at trial, and that the witness can actually help the jury with their task, thus creating a willingness to pay attention to someone who is there to make things easier for the jurors.
"Have you preformed your analysis?"

"Are you prepared to share your opinions with this jury?"
Here comes the critical component of my presentation: I want the jury to understand why I must walk the expert through their qualifications and the work performed to reach the conclusions. The jury, understanding this, knows it is important.
"Before I have you share your opinions with this jury, I need to walk you through what qualifies you to come into this trial to share your expertise with the jury. May I do that?"

After completing the discussion of the expert’s qualifications, I shift to the work to collect all the information and documents, and the steps taken to perform the analysis. It is only after I have done that, and the jury understands the work the expert performed, that I ask the opinions.

I feel the Hook method of presenting experts makes the use of experts more understandable to the jurors and helps them understand that the expert is there to make their task easier.

Check back each Friday for my posting of new installments of Young on Trial.

I have published two small books to help the ordinary person with employment issues. They are for sale at for only 99 cents each. One is called "You’re Fired!" and the other is called "I Quit My Job!" Please refer anyone who could benefit from direct answers to employees’ questions during difficult times.

Until next Friday, thank you for reading.

1 comment: