What strategies can maximize the effectiveness of expert testimony in complex litigation? We asked DOAR’s prominent jury consultant Ellen Brickman, Ph.D. to provide her insights on how best to engage with experts on matters. Her expertise working with top attorneys nationwide on high-stakes, high-profile cases offers an insider’s perspective on the impact of experts at trial.
We tapped Dr. Brickman to discuss best practices for presenting complex expert testimony, strategies to enhance witness credibility and techniques to ensure juror comprehension of intricate technical details. Read what she had to say about leveraging expert witnesses to their fullest potential, ensuring that their testimony informs, persuades, and effectively resonates with jurors.
DOAR: How do you determine the most effective way to present expert witness testimony to a jury?
Dr. Brickman: I think about the context of the testimony: What are the broad themes of our case? What are the most important points that the expert needs to get across? What is the venue like? Effective testimony in Boston can look very different from effective testimony in Marshall, TX. All of those factors go into determining the best way to present expert testimony.
DOAR: What common pitfalls do you see in presenting expert witness testimony, and how can they be avoided?
Dr. Brickman: The two biggest challenges are making sure jurors understand the testimony and keeping them alert and attentive. An expert who talks over their heads will lose them quickly. The best way to avoid this is by focusing your witness preparation on helping the expert tailor the testimony to a lay jury – and ideally, one with an 8th-grade or high school education. I’ve advised experts to practice explaining their material to their 13-year-old child, grandchild, or neighbor, and to keep at it until they’ve gotten through. Witnesses who have tried it have found it a helpful exercise, and often say that the questions asked help them improve their explanations.
As to attentiveness, a short, tight rhythm for Q&A as well as lively interactive graphics can go a long way to keeping jurors’ interest.
DOAR: How do you balance the technical depth of expert testimony with the need to keep it accessible and engaging for the jury?
Dr. Brickman: As mentioned earlier, expert testimony is really about teaching whether it is a jury, a judge, or an arbitration panel. That is why professors often make such great expert witnesses. They often have decades of experience teaching complex material to an audience that is learning about it for the first time. They also understand the effectiveness of teaching aids such as charts and graphs, and the value of making the presentation interactive.
DOAR: What advice do you have in selecting the right expert witness for a particular case?
Dr. Brickman: Of course, expertise in the particular subject matter is critical to an expert’s admissibility and effectiveness. However, you must consider relatability, confidence, an expert’s ability to teach, and the chemistry between the expert and the legal team. Jurors rely heavily on expert testimony and our research shows that jurors value practical experience over theoretical opinions based on research. You also need to consider the venue and how an expert will be received by a judge or jurors.
DOAR: How important is the expert witness’s communication style in influencing the jury, and what can be done to enhance it?
Dr. Brickman: It’s very important as an expert can only be effective if jurors attend to and understand the testimony. Again, witness preparation is key. Attorneys can help by structuring Q&A to play to a witness’ strength and get around their weaknesses. If an expert is used to teaching and communicates best in that style, ask the Court to let them go up to the screen and talk through graphics while demonstrating. If an expert tends to run on, structure the Q&A with a lot of highly specific questions rather than a smaller number of very open-ended ones.
DOAR: How do you handle potential biases that jurors might have towards expert witnesses?
Dr. Brickman: It depends what kind of bias you mean. If they’re biased against experts generally, acknowledge that pre-emptively: “Some of you may think of experts as hired guns. And yes, Dr. X is being paid for her time and is getting what may sound like a lot of money to you. But as she talks to you, I ask you to set that aside and focus on her many years of experience and expertise that she brings to this, and the many hours that she put into analyzing the information and materials in this case. That is what shaped and informed her opinions that she will share with you.”
More personal biases against an expert (e.g., racism, bias against foreigners, etc.) are harder to address; the best strategy is to identify those who may have an issue with a particular (key) witness and strike them during jury selection.
