The Art and Science of Expert Witness Testimony

A Multidisciplinary Guide for Professionals

Karen Postal

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367491611
• eBook ISBN: 9781000430769
• Topic: Psychology
• Subtopic: Business Communication
• Index: Psychology

Featuring in-depth interviews of attorneys, judges, and seasoned forensic experts from multiple disciplines including psychology, medicine, economics, history, and neuropsychology, The Art and Science of Expert Witness Testimony highlights and offers bridges for the areas where the needs and expectations of the courtroom collide with experts' communication habits developed over years of academic and professional training.

Rather than seeing testimony as a one-way download from expert to jurors, The Art and Science of Expert Witness Testimony focuses on the direct, dynamic, unique communication relationship that develops as each juror's lived experience interacts with the words of experts on the stand. This book expands the academic tradition of "methods-centered credibility" to also include "person-centered credibility," where warmth, confidence, and relentless attention to detail build trust with jurors. Seasoned forensic experts share what they actually say on the stand: their best strategies and techniques for disrupting traditional academic communication and creating access to science and professional opinions with vivid, clear language and strong visuals. The difficult but necessary emotional work of the courtroom is addressed with specific techniques to regulate emotions in order to maintain person-centered credibility and keep the needs of jurors front and center through cross-examination.

This innovative compilation of research is essential reading for professionals and practitioners, such as physicians, engineers, accountants, and scientists, that may find themselves experts in a courtroom. The Art and Science of Expert Witness Testimony provides a unique experience for readers, akin to being personally mentored by over eighty-five attorneys, judges, and seasoned experts as they share their observations, insights, and strategies—not to "win" as a defense, prosecution, or plaintiff expert, but to be productive in helping jurors and other triers of fact do their difficult intellectual job in deciding a case.

Chapter 1

Expert Witnesses Have a Direct, Dynamic, And Unique Relationship With Each Juror

DOI: 10.4324/9781003044826-1

Experts spend hours carefully gathering data, formulating complex technical opinions, reviewing relevant research literature, and writing reports. Producing a balanced, evidence-based expert opinion and presenting it in court is intellectually demanding work.

But think about the intellectual work required of a juror. The juror has to understand our opinions, in a topic area that is typically outside of their lived or professional expertise, well enough to weigh our opinion against contradictory opinions from one or multiple other experts, in order to reach an impartial conclusion in a case that might alter the lives of the people involved. In the course of my research, attorneys, judges, and experts frequently noted that it is the jurors, hands down, who have the most intellectually difficult job in the courtroom. Pathologist Peter Cummings summed it up well:

You have to understand that jurors have an incredible responsibility. They have the hard job. My job is easy. I am just telling them the gunshot wound is here, came out there, and this is how that happened. They have to decide if this person sitting in front of them did the crime, and are they going to put this person in jail for the rest of their lives? You have to respect that responsibility. These are regular people, not scientists, not lawyers. They are not trained to be able to do that. Keeping that as the center of everything you do is really how you are able to communicate with them.

For academically trained experts, acknowledging that jurors have the most difficult job in the courtroom can be a mental shift as profound as the Copernican Revolution. Rather than seeing the jurors as our audience as we showcase our intellectual work product, we begin to see ourselves as there to support the jurors in their difficult intellectual work. That is, the courtroom experience does not revolve around us as the experts. The jurors are the center of gravity.

Judge Allison Burroughs points out “… the expert really should be thinking not about what they are saying but what do these 12 people need? How can I help them?” Judge Paul Grimm also emphasizes that experts are there to help jurors. He points out that the first part of the federal rule of evidence that defines an expert witness is oftentimes the main focus of attention, but the second part is equally important (in bold below). He notes, “If it's specialized, technical, scientific, then that's the basic first step. But the second step is: it's got to be helpful.”

702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of their opinion or otherwise if this expert's scientific, technical, or otherwise information will help the trier of fact to understand the evidence or to determine a fact or issue.

Judge Burroughs clarifies the type of helpfulness required, “If you’re a good expert you aren’t trying to convince the jurors that you are right. You are trying to give them enough information to make the right decision. You want to empower them as opposed to being the one with the power and the opinion.” Her use of the term “empower” moves us away from a common analogy of the expert witness as a “teacher to a passive jury” and toward the idea of active engagement from both the expert and the members of the jury. That is, our goal as experts is not to “tell jurors the right answer” but to provide relevant tools so jurors can come to their own conclusions.

A judge who preferred to remain anonymous expressed this concept in a compelling manner:

Stop thinking about yourself when you are on the stand. Start to think about the jurors. It is like the moment when you fall in love or have kids – you think about them first. Do that with the jury. Take yourself out of the equation.

The goal of providing tools rather than providing answers is similar to a foundational principle in psychotherapy. For those of us who have provided or participated in therapy, it can sometimes be frustrating that a therapist does not tell patients what the answer is. To the question, “What should I do?” A good therapist will answer, “Well, let's explore the options…” The reason? As soon as a therapist tells a patient what “the answer” is, the therapist disappears for the patient. They become just one more person in the patient's life who has a point of view, competing with all the other points of view. Therapists therefore focus on providing tools and sharing useful information rather than telling patients what to think.

This shift from providing answers to providing tools also reflects the difference between a traditional academic teaching style, where there is a one-way download from teacher to student, and a dynamic, collaborative teaching style, where the goal is to meet students where they are and provide the specific tools they need, in the way they need the tools, so that students can confidently solve problems. This brings us to the next principal: the shift toward focusing on the needs of the jurors requires a dialogue, not a monologue.

Our Communication Partner Is The Jury

When experts are on the witness stand, attorneys ask us questions and we answer. Because of this, it is easy to be lulled into the idea that our communication partner is the attorney. But as the linguist Robin Lakoff points out in her book, Talking Power: The Politics of Language,¹ the attorney and expert together form one side of a communication partnership. The other side is the jury.

To the observer, the discourse seems a dyad between lawyer and witness. But in terms of its function in a trial, both are in fact acting together as one participant, the speaker, with the jury as the hearer. Without this understanding, much about the examination procedure would be unintelligible: one partner telling the other, at great length, what the latter already knows.²

The concept can be taken a step further. Because the attorney and expert are the only ones speaking, it is also easy to be lulled into the idea that we are engaged in a one-way communication, from attorney-expert to jury (see Figure 1.1). A monologue rather than a dialogue. The line of reasoning may look like this, “As an expert, I developed opinions, and I am going to simply download that information to the jurors through a series of questions the attorney asks.” That is, we are lulled into the idea that we are not engaged in a unique, direct communication exchange with each juror.

Figure 1.1

A Direct, Dynamic, And Unique Relationship With Each Juror

The idea that we are engaged in a unique dialogue and are building a direct relationship with jurors can be a “record scratch” moment. The reality is that each juror brings their own cultural, linguistic, educational, vocational, family, and social backgrounds, as well as their direct experience with the issues at hand to the moment they are hearing our words. It is also important to remember that jury duty occurs in the midst of busy, complicated, sometimes stressful lives. Jurors may be caring for children, grandchildren, elderly parents, have jobs they are missing, bills to pay, and medical problems they are struggling with. Those unique experiences are dynamically interacting with our words, at every moment, in each juror's thought bubble.

Yes, it is possible, and probably common to ignore the dynamic, unique interplay between the thought bubbles of each juror and the words we are speaking as experts. But just because we choose to ignore it, doesn’t mean the dynamic interplay is not occurring. When we understand the unique experiences a juror brings to our communication partnership, we can meet them where they are – use language, metaphors, and analogies that are more likely to be relevant to their experience and therefore helpful in their intellectual work. We can also avoid alienating jurors.

Who Are We Communicating With?

How can we understand the unique relationship we are building with this particular set of 12 people? When I was in training, I followed an organizational psychologist around as she gave talks to workers in large companies. We always arrived early and sat down next to audience members, asking them about their work and experiences in the company. By the time the psychologist began her speech, she was able to use meaningful, relevant examples – because she had taken the time to understand what was relevant to the people with whom she was speaking. As expert witnesses, it would be ideal to talk with each juror to understand their back story and personal experiences. Unfortunately, this can’t happen in our court system. But during jury selection, the attorney who brought us to the case would have had exactly that opportunity. It is therefore important to ask attorneys to introduce us to our communication partners during a pretrial conference. What education has each juror had access to? What do they do for a living? What is their cultural/linguistic background? Experts can ask attorneys to create a map of the jury box and review each juror's background. Jurors always sit in the same assigned seat throughout the trial, so we know the backstory of each juror as we engage in our testimony dialogue. When the judge is the trier of fact, a similar virtual introduction prior to entering court is equally important.

It is sometimes possible to ask the attorney to pose a question during jury selection to better understand how much knowledge or experience they have in the area of our expertise. For example, if intellectual disability is an important part of the case and our opinion, we can ask the attorney if they can include a question about that in the juror selection process. Has anyone had a family member with intellectual disability? Taught children with ID? This could apply in many areas of expertise, for example have jurors undergone major surgery themselves? The goal is to better meet jurors where they are and provide the specific tools they need, in the way they need the tools, to help them with their difficult job.

It is also important to recognize the common experiences jurors have, based on living in a particular region. In their engaging book, Lawyers and Thieves,³ Roy Grutman and Bill Thomas note that the values and expectations of the surrounding community are reflected in juries, “justice is not democratic, it's local.” Neuropsychologist Kristie Nies notes that in the region where she typically testifies, everyone is pretty poor.

They do not award large dollar amounts. It seems too high to them. Many are disabled, or living on $20,000 a year. So there are notoriously low settlements. Attorneys complain about it. You are talking to a jury where folks on a jury themselves might be disabled. They might think: I had a brain injury and I didn’t get $200,000.

One expert described a murder case to me where the neurology defense expert was going to explain why someone in their teenage years might make impulsive decisions.

The trial took place in the rural Midwest, and the jurors were good solid farm people. These were folks who came right off the canvas of Grant Wood's American Gothic; very conservative, salt-of-the-earth people. They are taking this very seriously. The attorney who was representing the client asked the expert neuropsychologist:

Q: Doctor, you are very well known in this area, are you not? And you know a lot about how the brain works?

A: Yes, I do.

Q: And how do you acquire your knowledge?

A: I have spent many years studying the brains of aborted fetuses.

I was sitting in the back of the room and I looked at the jury after he said that; the jurors would probably have added this expert to the murder docket if they could have. They turned away from him in a non-subtle way and stopped listening to him. It is very important to understand the sensibilities of where you are and to whom you are talking.

– David Hartman, Ph.D., ABPP-CL, ABN

Harvard Law professor Ronald Sullivan also stresses the importance of understanding the local context of the jurors.

I try cases all over the country and I go spend time in jurisdictions before a trial. I will go to a flea market or other places like that and just listen. I want to figure out how people phrase things, what makes them laugh. You get a sense of a milieu of a place. I recognize that I don’t live there, and I might use the wrong sort of analogy if I am not careful. I wouldn’t ask experts to do that. That's a little too much, but the principle is the same. It's figuring out what makes real people, concrete people tick. If you can figure that out, then you can figure out how to explain something to them.

Beginning With The Language And Lived Experience Of The Jurors

When people hear new information, we make sense of it in the context of existing information. How does this new information fit with what I already know? That is, knowledge is actively constructed⁴ rather than passively received. In this context, active learning techniques, where people are asked to connect new information to personal experiences have been shown to substantially improve peoples’ ability to learn and to apply what they have learned.⁵ To the extent that we humanize our message and connect what we are saying to examples jurors resonate with, we will engage our listeners in a process of constructing usable knowledge. I was struck by how many interviewees brought up the importance of using examples that jurors could relate to in their daily lives. Lisa McDermott, a death penalty mitigation specialist, notes that there is power in an anecdote that is familiar to jurors.

When you talk like an academic, it is sometimes hard for people to relate. I find juries connect more when experts use everyday examples. I had a client who had a very low IQ. I learned his family sent him out to get cereal for h...

Table of contents

• Cover
• Endorsements
• Half Title
• Title Page
• Copyright Page
• Dedication
• Contents
• Contributors
• Preface
• Acknowledgments
• 1 Expert Witnesses Have A Direct, Dynamic, And Unique Relationship With Each Juror
• 2 Person-Centered Credibility In Expert Witness Testimony
• 3 Setting The Truth On Fire: Disrupting Traditional Academic Communication Patterns During Expert Witness Testimony
• 4 Planning Direct Expert Witness Testimony
• 5 Social Communication During Expert Witness Testimony: The Language Behind Our Words Matters
• 6 Maintaining Person-Centered Credibility On Cross-Examination Is Difficult But Necessary Emotional Work
• 7 Expert Witness Testimony During Depositions
• 8 Training To Improve Expert Witness Communication Skills
• Appendix: Some Really Great Metaphors, Analogies, And Succinct, Accessible Explanations
• Index