January 2007

Babble backfires. This year, when one of my own won a prestigious award, I couldn’t contain my excitement. The study by psychology professor Daniel Oppenheimer, “Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly” won the 2006 Ig Noble award from the Annals of Improbable Research. The awards are given out by Nobel laureates, and are awarded to scholars whose studies can make people both laugh AND think. Dr. Oppenheimer proved that using esoteric vocabulary can backfire, making the writer appear less intelligent.

Oppenheimer looked at the ability of his respondents to process the information and subsequently judge it. He stated, “The primary goal of a writer should be to be as clear as possible, and make reading the text as easy as possible for the reader. Occasionally, if simpler words aren’t sufficient, this may entail using long words in order to get across specific meanings or subtle nuances.” (DailyPrincetonian.com, 10/11/2006).

What I do as a jury consultant working on complex cases with my social psychology background is provide my insights and services to assist in persuading a lay jury. In addition to helping counsel and clients understand the strengths and weaknesses of their case, I also help attorneys and witnesses communicate in a memorable and convincing manner to juries. I typically run mock trial tests of cases, involving live or videotaped witnesses; I prepare fact and expert witnesses for trial, and often interview jurors after the verdict. Effective expert witness communication is important in conveying key points to jurors in a way that they can then take those points and argue them effectively in deliberation. One of the most common reasons for my services being called in preparing an expert witness is in getting the witness to communicate the case at a lay level.

Juror motivation. Because jurors want to arrive at what they feel is an accurate verdict, they are motivated to process meaningful information. They want to understand the case, but by and large most of the jurors are not going to understand GAAP and GAAS in an accounting case or computer architecture in a patent case off the bat. Attorneys, who can live immersed with the complexities of a case for years before bringing it to trial, and experts, up on the latest research in their fields, can easily slip into a techno-cadence that leaves lay jurors in the dust.

Babbling Experts can lose jurors. Particularly in cases involving highly technical substantive issues, experts can be at a disadvantage in convincing jurors by not heeding Dr. Oppenheimer’s findings, however ignoble. Juror John Ostrom imitated the sounds of Charlie Brown’s teacher in the TV cartoon when responding to the Wall Street Journal (Aug. 22, 2005) after the Vioxx verdict in the Ernst case: ‘Whenever Merck was up there, it was like wah, wah, wah.’ We didn’t know what the heck they were talking about.’ The point, it seems, went over their heads.

Experts’ proclivity to speak above jurors continues to be a real issue. Savvy attorneys will specifically seek out experts who can speak their trade in lay language. Max Blecher, considered one of the top 14 civil trial attorneys in America, explained his method of selecting expert witnesses in America’s Top Trial Lawyer’s: Who they are and why they win (Prentice Hall Law & business1994), “Can they explain what they are talking about in the English language without talking about the square root of the hypotenuse and drawing silly little charts that only other economists can understand?”

When experts resort to technical jargon, jurors can become inattentive as the material goes further over their heads. Jurors tune out to substantive information, because processing and understanding the information has become burdensome, and tune into peripheral cues (“The expert must be correct because he had such a long publication record,” or “This expert must be intentionally complicating this issue to distract us.”) Jurors may focus on peripheral factors and make assumptions based on those more extraneous factors. I interviewed jurors following the Chromalloy vs. Pratt and Whitney verdict in San Antonio, involving antitrust and patent issues regarding engine repair. Responding to one Plaintiff expert (who was both a fact/expert witness in the case), one juror noted,” The testimony I remember was ironic. It was that he’d invented something, and he’d admitted he’d read an existing patent on it.” Yet, the juror seated next to her noted, “He looked like he was thinking, ‘Oh Lord, I screwed up,’ because he had a funny look on his face.”

In that case, the two jurors arrived at the same conclusion even though one had followed the testimony and the other had not. But often, that is not what happens. Jurors might spend their time instead picking apart clothing or considering that the expert who was on the stand was the most important one.

Worse than being perceived as boring for this inability to convey information, experts can be seen as being evasive. Frequently in the mock trials I run on complex cases, excerpts of an expert witness’s deposition testimony are played for jurors to test their comprehension and persuasiveness. Experts who are difficult to understand are often rated as ‘obscuring the facts’. Mock trials and focus groups are excellent formats for testing comprehension of expert communication ahead of trial – and ensuring time to enhance that communication for greater juror understanding prior to trial. Here are some challenges and enhancement techniques:

Bullet pointing. Experts can work on providing short answers that are to the point. Lengthy answers can lead to many problems of their own, so practicing short answers has the added benefit of what I refer to as “staying within the box” of one’s expertise area, and avoiding being taken down a rabbit trail by a savvy attorney in cross examination. I often use a stopwatch with witnesses who have a tendency to give lengthy answers, and have the witness practice bullet pointing main points before giving answers.

Demonstratives. There are times when technical issues will need to be used and no simple language can substitute. This is best done after a basic framework has been laid for the case, and jurors have a schema for how the testimony will fit in. With the witness becoming the teacher, he or she can effectively convey complex information in a visually memorable fashion. A dry erase board or a prepared demonstrative aid is very effective in teaching the complex issues or technology. Demonstratives are a must. Consider the PowerPoint graphic below, by Dallas-based legal multimedia powerhouse Barnes & Roberts (www.barnesandroberts.com). This piece was used in a patent case to explain the unreasonableness of Plaintiff's royalty rate demand by comparing the licensing rate of the IBM portfolio to the royalty demanded for the single patent-in-suit. Without the graphic, this type of information would involve considerable explanation by the defense expert, yet the graphic aids in making the point for the expert succinctly and convincingly.

It is effective to use a variety of mediums (court boards, videos, 3-D animations, rather than resorting to one medium.) Jurors these days are used to seeing visuals in the courtroom, and many jurors are visual processors who need to ‘see’ the point being made. But just as effective is knowing when to turn the overhead off and talk and teach directly.

The fine line. Conversely, experts don’t want to make the case too simplistic when it is in fact not, or appear condescending in their simplification. While this next example involves an attorney rather than an expert, the point is the same: In one particular airline patent case, a model runway demonstrative was shown, complete with airplanes to demonstrate what an airport looked like. Models and demonstratives had been extremely helpful in this case, but this particular one came near the end of trial, after jurors had seen much more complex and informative demonstratives involving intricate engineering. Jurors I interviewed reported feeling talked down to with that example. Jurors prefer experts who can teach them the material and help them understand it. The teaching witness is empowering to jurors, who can then more effectively advocate their side back in the jury room.

Analogies can be useful. Analogies can represent the ‘aha’ moment for jurors, where they can relate complex issues to something in their lives. For example, in a case where Company A, who acquires Company B, then undercovers fraud at Company B and sues the Big 5 Accounting firm that assisted with the acquisition, let’s say you’re working for the defense and you need an analogy to talk about the Plaintiff’s due diligence. Jurors can be told of the analogy of home inspections to drive home the point Company A did not do its due diligence as the buyer. Nearly all analogies, however, are subject to fallacy as they can be torn apart easily, so they need to be chosen carefully.

Variations to keep them glued. Another handy method of holding jurors’ attention through more complex testimony is for the expert to vary his or her speaking patterns. Experts can vary in their volume, and practice speaking slowly, and stressing syllables accordingly. Granted, experts shouldn’t wait until cross examination to vary their speaking style; that would tip off jurors that something interesting just happened.

Attorney-as-translator. When testimony must be complex, such as in real dollar value today and adjustments for inflation, the attorney can assist by being the natural translator for the jury (In 1915 milk cost $ .36 a gallon – $7.22 in 2006 dollars – yet milk averages around $3.00 a gallon.). The attorney can ask the witness how this happens and can play the lay person, seeking explanation until it is simplified at a lay level.

Sharon Lundgren, PhD
Lundgren Trial Consulting, Inc.
sltrial@sbcglobal.net
713-465-8820