You pay a premium for expert testimony. Why? To persuade jurors. But do you have any way to know if you are investing in the right expert(s)? There is no single rule to pick the best experts for each case, but we have had the chance to measure the effectiveness of thousands of experts over the years, and have identified a handful of key traits we see in expert witnesses that achieve their desired effect – persuading jurors.
Here are 5 key takeaways from a case we recently researched that can be useful next time you are making an expert decision:
(For context, this was a med mal case where a baby sustained anoxic brain injury during birth. The defendants admitted liability, so our research focused on damages for this severely injured child. One of the key issues was life expectancy. Our clients were acutely interested in learning which side’s expert on life expectancy would be most persuasive to the jurors in this venue).
- Many expert opinions are ignored: Jurors figure experts are paid to say whatever the paying party wants. Furthermore, most jurors favoring plaintiff avoided choosing between the experts and instead looked to the Big Picture. They wanted to help the family… and were willing to ignore some details to do so. Rather than letting your discovery lead your strategy, focus your efforts on finding out what theme is persuasive to jurors, and keep your trial home there.
- Likeability helps: Normally subjective factors such as overall appearance, confidence, humor and friendliness will help jurors decide between experts. Look for engaging, personable experts who the jurors will naturally want to believe.
- Size matters: Jury instructions can say all they want about the number of witnesses should not determine factual conclusions. But numbers count. The jurors favoring the defense often did so because the defense had more experts testifying on this key issue. All else being equal, the side with the most experts often wins.
- Variety helps: The defense in this case approached the life expectancy question from both a research/theory perspective and from a practical/clinical perspective, and we found that each of those approaches persuaded different jurors. If you decide to hire multiple experts, look for those that can persuade jurors in different ways.
- Different standards: In this case several jurors said the plaintiff expert was “not as reasonable” as the defense. The perception of being biased or emotional tended to hurt the plaintiff. On the other hand, the perception of being cold-hearted and selfish will often hurt defense witnesses.
I hope you find the insights from this example helpful in your work. Please reach out if you want to determine the persuasiveness of your experts… before you are stuck with what you have at public trial. Our online research tools are a powerful, cost-effective way to evaluate witness effectiveness and build your winning trial strategy.
About the Author
Joe graduated from the U.S. Coast Guard Academy in 2011 with an officer’s commission and a B.S. in Management. He served tours of duty in San Francisco and New York, where he worked as a commercial shipping inspector and accident investigator. This work led Joe to work hand in hand with risk management and legal professionals, developing regulatory solutions to improve safety and business outcomes for the industry.
This experience building consensus between adverse parties inspired Joe to seek out opportunities as a peacemaker, leading him to resign from the Coast Guard and join First Court as a mediator and manager. Joe currently lives and works in the Denver metro area with his wife, daughter, and german shepard.