So, you just put the cherry on top of your accident reconstruction. You skillfully interpreted the evidence and relied on principles of physics to put numbers to that evidence. That’s great. But, if you stop there, you may have left your work half-done. If your reconstruction is right, and if it will provide a jury with information they actually need, then it matters that you communicate what you have done in a clear way and it matters that the jury trusts you. But, here’s the paradox from a jury’s perspective: you are an expert in your field, and they are not. At least some facets of your testimony are going to cover complex issues outside of their life and professional experience. And yet, they have to make judgments about you and your expertise and decide whether or not they believe you. How are they going to make that decision, especially if another expert has opinions that disagree with yours?
Ivkovic and Hans examined this question by studying the responses of real juror’s to expert witnesses in 36 civil cases involving businesses and corporate parties. They first administered a questionnaire to 269 jurors from these cases. Then, they conducted in-depth interviews with 55 jurors on 8 of the cases - two medical malpractice cases, two workplace injury cases, a product liability case, an asbestos case, and a motor vehicle accident case. The questionnaire revealed that the jurors showed “a good deal of skepticism about experts.” For instance, 72% of the jurors agreed or strongly agreed with the statement that “lawyers can always find an expert who will back up their client’s point of view, no matter what it is.” That’s actually a helpful belief for jurors since it makes them less likely to be duped by a bad expert. But, how did these jurors actually decide which experts they believed and which ones they did not?
Before we delve into that, time for a quick disclaimer. My intent here is not to give dishonest and unskilled experts techniques for hoodwinking a jury. If that’s you, I lovingly hope you get killed in cross-examination! I’m going to operate with the following assumptions:
- You are honest and you are not intentionally trying to mislead the jury.
- You are doing the best work you can, given the current constraints of your expertise.
- You are always working to expand and deepen your expertise.
- You actually have useful information to convey to the jury that will help them make the right decision.
Alright, that behind us, let’s dive into the jurors’ decision making process in the Ivkovic and Hans study. Through analysis of their in-depth interviews, Ivkovic and Hans concluded, first of all, that the jurors considered qualities both of the expert and of the content of the expert’s testimony. They boiled their findings down to 5 areas that the jurors considered. Below I’ve translated these five areas into five imperatives that you should implement if you want to establish trust and improve your communication with a jury.
Be clear, concise, and relevant. In other words, don’t be confusing and long-winded. Give the jury the information they actually need. Ivkovic and Hans found that “clarity of presentation was critically important…[jurors] did not have a lot of mercy for experts whose focus of testimony was boring or unclear.” One juror told the researchers: “There were times when the testimony was very dull and technical, and you might have a tendency to, your mind would wander. You’d have a tendency to want to doze off.” Anyone here ever had a juror doze off on them? I have. Don’t let that be you. Keep the jury engaged with a physical model, an animation, a demonstration, or a graphic. Vary your pace and tone. Let your enthusiasm for your work come out.
Teach the jury without jargon. Ivkovic and Hans reported that, in their interviews with jurors, presentation style was the most frequently discussed aspect of how they assessed an expert’s credibility. “It seems that the best expert witness comes across as a very good teacher…Jurors felt more comfortable and regarded experts as good when they adjusted their vocabulary for a lay audience during the presentation.” Read that again: the best expert witness comes across as a very good teacher. Don’t expect the jury to believe you just because of your long list of accomplishments and your big words. Walk them through the evidence that you considered. Teach them how to interpret that evidence. Let them in on your thought process and let them evaluate it.
Be pleasant. In other words, don’t have a bad attitude. Ivkovic and Hans noted that “the expert’s personality and attitude...did appear to influence [the juror’s] assessment of expert credibility.” They further note that “evasive expert witnesses were not appreciated…” Don’t beat around the bush. Answer the questions. This may require you to make your peace with cross-examination. Ivkovic and Hans also reported by the way, that some jurors judged the experts’ “intelligence, watched body language, and/or tried to use other psychological tricks” in deciding which of two conflicting experts to believe. One juror said: “You can tell when they lie...if you look at people and study people, there’s something you can find out...you look for the way they speak. You look for the eyes. You look for the movements...If he rocks like this and the other lawyer asks him a question, and he’ll make like he don’t understand the question.”
A recent study by Jurs claims to dispute these findings by Ivkovic and Hans that an expert’s personality and attitude play into the jury’s assessment of their credibility. Jurs administered surveys to jurors “in every civil case that went to trial in 2012 in one medium-sized urban county in Iowa…” This amounted to 42 trials, 36 of which involved at least one expert witness, and 33 of which Jurs was able to examine. The response rate among the jurors to Jurs survey was 15%. Among these respondents only 47% believed that a “pleasant personality” was necessary for an expert to be believable. Despite the fact that a majority (53%) did not believe a “pleasant personality” was necessary for an expert to be believable, it seems obvious that the 47% that did is still a pretty large percentage. So, I guess if you want to sacrifice the quality of your communication with 47% of a jury, then go ahead and show up with a bad attitude!
Be engaging. That pretty much sums up the last three points, which all bear repeating for this reason: the jury is judging your motives. Being clear, concise, and relevant, teaching the jury without jargon, and being pleasant - these are characteristics of a trustworthy expert, not an evasive one that's hiding something. The jurors in the Ivkovic and Hans study considered how much the experts were paid, how frequently they testified, and any personal relationship or obvious sympathy they had with the party for which they were testifying. One juror in the study had a problem with experts being compensated at all: “It’s that somebody will do it for money. And I think that was the largest, in my impression, the largest motive pushing the expert witnesses, is money. And that sort of discredited the witnesses, the expert witnesses toward, for me, well, you know, both sides…” Another juror was fine with the experts being compensated: “I expected them to be awarded for it, the time that they’d spent in this, researching it and exploring it.” Jurors discredited one expert because he had appeared in a number of similar cases with the same attorney: “The defense attorney brought out that 95% of this guy’s income is just testifying in asbestos cases all over the United States, and then you felt like he had a racket.” When it was all said and done, the jurors’ examination of the experts’ motives almost always had a negative impact on the experts’ credibility. That, of course, is independent of what the experts’ motives actually were. Ivkovic and Hans noted, “a good quality presentation may help to counteract problematic motives” - or the perception of problematic motives, as the case may be.
Develop and explain your credentials. Ivkovic and Hans reported that jurors noticed and evaluated the experts’ credentials, including their education, institutional affiliation, area of specialization, and their research and professional activities. This factor was mentioned particularly when the jurors had to assess the relative credibility of two conflicting experts, one for the plaintiffs and one for the defendants, in the same field. Generally, an expert’s credentials increased their credibility with the jury. In one particular instance, though, a doctor’s long list of credentials negatively impacted his credibility because jurors doubted he had time to actually practice medicine with all of the papers he had presented and committees he was on. So explain your credentials so the jury knows that you are an expert in the field - just don’t go overboard.
And a bonus tip...be honest! Ivkovic and Hans only had access to the jurors’ perceptions of the experts. They did not have access to the actual motivations of the experts, and so, they could not examine the extent to which jurors accurately perceived which experts were trustworthy. So, hey, I can’t prove this scientifically, but I’m going to go out on a limb and say, being credible starts with being honest. Let’s just assume that when jurors reach conclusions about the credibility of an expert, they are perceiving something real. And being honest isn’t just about intending to tell the truth. It’s about knowing the limitations of your own expertise. It’s about allowing yourself to feel self-doubt. It about staying inside of your fence and acknowledging your assumptions.
Summary - In summarizing their findings, Ivkovic and Hans wrote that “jurors associate the following with credibility: lack of bias; good credentials; a pleasant personality; a clear, objective, focused, not overly long presentation that utilizes diagrams and models; use of lay terms; a presentation that is complete, consistent, and not too complex; knowledgeability in the area of expertise; and familiarity with the case.” The Ivkovic and Hans study has its limitations, of course. It’s based on juror’s self-assessment and self-reporting about how they decided which experts to trust. These jurors could have been inaccurate in their description of their own decision making process. But, hey, the list they came up with kind of makes sense, doesn’t it?
- Ivkovic, Sanja Kutnjak and Hans, Valerie P., “Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message” (2003). Cornell Law Faculty Publications. Paper 385.
- Jurs, Andrew W. (2016) “Expert Prevalence, Persuasion and Price: What Trial Participants Really Think about Experts,” Indiana Law Journal: Vol. 91: Iss. 2, Article 4.