The Expert Witness as Teacher: How a “Neutral” Tutorial Can Enhance a Jury’s Understanding of Your Case
By David Jaroslaw & Wendy Michael
Posted: 22nd November 2013 09:11
(Adapted from “The Expert Witness as Teacher: How a "Neutral" Tutorial Can Enhance a Jury's Understanding of Your Case,” FDCC Quarterly, Volume 62(2) Winter 2012)
Modern litigation brings with it great commitments of lawyer time and client expense, detailed examination of both law and fact, and uncertainty as to outcome. Quite often, the evidence is sufficiently complex that attorneys need expert witnesses to help explain the case to jury and judge. In many ways, it is helpful to think of the expert witness as a teacher. Like any good teacher, the expert must be able to simplify complex information, in a way that makes it understandable to the listener - in this case, to the jury and the judge. Techniques that simplify the presentation of complex information include narrowing the potential issues, using ordinary language, and, in particular, providing a “neutral” example. A neutral example does not use the facts of the case, but rather uses an analogy or metaphor that helps the jury to understand the relevant principles. While the specifics of the expert’s subject may be unknown to nearly everyone in the courtroom, the expert can frequently analogisethe underlying concepts to things that are familiar to the jury. If the jurors are properly educated by the expert, so that the relevant concepts are no longer stumbling blocks, they are far more likely to be persuaded by your evidence.
Under the Federal Rules of Evidence (and equivalent state laws), an expert may rely on and present to the jury information that would otherwise be inadmissible. This also allows for the use of various rhetorical devices, including most importantly analogy and metaphor, which we employ routinely in ordinary conversation to clarify and explain. The use of analogy and metaphor allows the expert to liken concepts and even entire disciplines with which the jury is unfamiliar to things which fall into the jury’s everyday experience. This is an essential component of preparing any expert’s testimony - keeping the amount of new information the trier of fact will need to digest as limited as possible. In a complex case, the facts are already difficult enough. If those facts cannot be placed within a comprehensible framework, they are far more likely to be misunderstood or even ignored.
Narrow the Issues
Likening unfamiliar concepts to familiar ones is part of the process of simplification - relentless simplification - that is essential to the proper presentation of expert testimony. The attorney must thus narrow the range of issues to be presented in a case, and must ask, “How much information does the jury need to know in order to understand this case?” In a case where a defendant is claimed to have caused injury to a plaintiff, the defendant must decide whether it will contest “general causation,” i.e., whether the defendant’s product or conduct was capable of causing the damage at issue in the case, or will limit its defence to a denial of “specific causation,” i.e., whether the defendant’s product or actions caused the damage at issue in this case. If general causation is not at issue, information related to it is just a burden on the jury.
Use Ordinary Language
In addition, the language the expert uses must be simple and clear. This point was made rather bluntly by a juror from Ernst v. Merck, one of the Vioxx cases, who, in a report in the Wall Street Journal, likened the testimony of one of the defenceexperts to the sound of the teacher from the televised Peanuts cartoons: “Whenever Merck was up there, it was like ‘wah, wah, wah.’ We didn’t know what the heck they were talking about.” It should be noted that this case resulted in a $253 million verdict for the plaintiffs (later reversed on appeal on other grounds).
Provide a Neutral Tutorial
Because the common law system is an adversarial one, we tend to think of expert witnesses as “our” experts and, conversely, the opposing expert witnesses as “their” experts. This of course reflects the realities of most litigation. We tend to focus on the role of the expert in presenting “our case,” at times to the exclusion of the role of the expert in assisting both jury and judge to understand that case. This has not gone unnoticed by courts both here and in other common law countries, and there has been movement towards the use of “neutral,” typically court-appointed experts. It is possible, however, by having an expert present background through the use of neutral examples, to get this benefit - the education of the trier of fact and court - while still preserving control over the manner and content of the information presented. This can be accomplished through the expert’s use of a “neutral” tutorial that not only increases the judge and jury’s understanding of the case, but also lays the groundwork for the specific defences to be advanced.
While ultimately it will be important for the expert to be able to explain to the judge and the jury the relationship - or lack of one - between the defendant’s product or conduct and the plaintiff’s purported injuries. However, using the actual facts of the case to teach the underlying concepts is often less than optimal. To begin with, a judge is likely to give an expert far less leeway when he or she is referring to the evidence specific to the case than when describing background matters. Equally importantly, using the same facts as both teaching tool and as part of the case runs the risk of confusing both jury and judge. As a result, it is often better to have the expert use a hypothetical example using a different, but closely analogous, set of facts. So, for example, the causation issues in a case involving a claim that exposure to a chemical produced by the defendant caused injury to the plaintiff might be illustrated by an example using a different chemical (preferably one not manufactured by the defendant) and a different disease.
By using a neutral example, the expert avoids controversy - and the resulting appearance of “siding” with one side in the case. This increases the expert’s credibility and, as a corollary, increases the extent to which both jury and judge accept the expert as a teacher, one who will walk them through the best way of making sense of a complicated case. Where the jury and judge already have a basic understanding of the principles in the case, they are better prepared to make connections between the facts of the case and those principles. Further, the more the jury and judge accept the expert’s teaching on the underlying principles, the more likely they are to be receptive to his or her conclusions when the facts of the case itself are presented. At the end of the day, if the jury and judge understand the case, and are receptive to your presentation of it, the expert witness has done what has been asked.
David Jaroslaw, Partner
Mr. Jaroslaw has litigated a broad spectrum of complex civil and criminal matters in both federal and state courts, at the pre-trial, trial, and appellate level. Since joining Jacob, Medinger & Finnegan, LLP in 1998, Mr. Jaroslaw has represented manufacturers of tobacco and other products in the United States, Europe, and Asia. From 1993 through 1998, he prosecuted organisedcrime and international money laundering for the Rackets Bureau of the New York County District Attorney's Office and for the New York State OrganisedCrime Task Force (where he was also cross-designated as a Special Assistant United States Attorney). From 1988 through 1993, he was associated with Paul, Weiss, Rifkind, Wharton & Garrison, where he handled securities, commercial fraud, and employment discrimination matters.
Mr. Jaroslaw is a Vice President and member of the Board of Trustees of the Brooklyn Heights Synagogue and is a member of the Board of Directors of the URJ Eisner and Crane Lake Camps.
Wendy Michael, Senior Counsel
Wendy Michael is Senior Counsel to the firm of Jacob, Medinger & Finnegan, LLP, New York, New York. The focus of Ms. Michael's practice is representing large corporate clients in high-value product liability litigation and complex commercial disputes, primarily on the defenceside.
In the product liability arena, Ms. Michael has extensive experience in fact investigation and development of evidence in support of defencestrategies. On the commercial side, Ms. Michael's work has been in the context of both traditional judicial forums as well as in alternative dispute resolution proceedings. Ms. Michael recently coordinated the defenceof all phases of a commercial arbitration involving environmental and insurance coverage issues, as well as procedural issues concerning the interplay between an arbitrator's powers and the state and federal courts.
Ms. Michael is a member of the State Bar of New York and the State Bar of Wisconsin. She is also admitted to practice before the United States District Courts for the Southern and Eastern Districts of New York.