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Influence Your Verdict by Changing Jurors' Perceptions of Expert Witnesses, Part One

By Joseph M. Hanna – August 17, 2011


At the moment of accountability, when many jurors engage in the deliberation process, the critical factor that most significantly influences how they analyze the case is their long-standing predispositions rather than anything else.


Determining what those long-standing predispositions are and what themes will influence jurors the most are reasons defendants in catastrophic injury cases find more and more that there is great value in engaging in mock jury exercises. A studied review of many such exercises leads us to believe that in any jury pool, one will likely find jurors who are either predisposed toward plaintiff’s themes or defendant’s themes. One will also find centrist jurors. One of the premises of this article is that to the extent that the centrist can be won over to the defendant’s camp, the likelihood that the pro-plaintiff jurors will be won over by the logical discussion and peer pressure that occurs during the deliberative process is greater.


An essential component of achieving this goal is to successfully undermine the jurors’ perception of plaintiffs’ expert witnesses and to maximize the favorable impression a defense expert makes. Since the early 1990s, achieving this goal has been particularly challenging for defense counsel.


The Role of Jurors
Even before the Enron scandal, a survey found “that a majority of jurors are pre-disposed to believe an individual’s version of events in any dispute with a corporation.” Wall St. J., Nov. 13, 1991 at B5. After the litany of scandals that followed Enron, the problem was compounded. The Wall Street Journal verified what many trial lawyers have recognized; increasingly, we are confronted with a new class of jurors.


The members of this class have been displaced by economic chaos—environmental disasters and downsizing—and they are now feeling insecure, vulnerable, and bitter. They blame, among others, Corporate America for their plight. These individuals contribute significantly to the volatility of jury verdicts.


Jurors from this group of individuals will deliberate and consider how a corporation should be judged for its alleged errors and tortious conduct. This is the group that the corporation must win over if it is to defend its case successfully.


The success of defense counsel under these circumstances depends, in large part, upon his or her ability to develop a high degree of empathy for the plight of the typical juror in a lawsuit against a corporation. Among other things, counsel should be sensitive to the following:


  • Most jurors will be the quintessential “average citizen”—a person who may or may not have graduated from high school. In some jurisdictions, exemptions and other available ploys virtually ensure that few, if any, professionals will sit on the jury.
  • Law students take separate courses in tort law, products liability, civil procedure, and evidence. Imagine the difficulty the average juror confronts in attempting to make an appropriate determination based on an understanding of the evidence and law in a given case during the two or three weeks of trial.
  • In many jurisdictions, jurors are not permitted to take notes and, thus, must remember the significant amount of factual information that accumulates over the course of a trial. Perceptions and impressions often may be more important than the evidence itself.
  • The jurors are in a stressful environment with many novelties and distractions, which may limit their ability to appreciate the subtleties of the case.

Keeping the foregoing factors in mind, it is no wonder that some jurors are overly impressed by a polished expert’s demeanor rather than suspect the lack of substance of the expert’s testimony.


Anger Management
The adversarial legal system is dependent on the assumption that decision makers are rational, unbiased, and not strongly predisposed. The plaintiffs’ bar recognizes to the extent that this paradigm can be altered by their trial strategy that the plaintiff’s case benefits mightily.


In recognition of this fact, the plaintiffs’ bar has developed aggressive discovery initiatives, questioning techniques, order of proof strategies, and expert witness presentations, which, among other things, are geared toward capitalizing on the tarnished reputation of Corporate America.


The plaintiff’s goal is to capitalize on the tarnished image of Corporate America by creating anger and suspicion on the part of the jurors toward the defendant. With the arguments developed from the implementation of these strategies in hand, plaintiffs’ counsel angle to try to generate as much anger against the corporation as they can. They recognize what we all intuitively know from our own experiences: What is rational is often overcome when anger holds sway. In our own lives, we have all observed time and again how passion overwhelms reason.


A number of the studies discussed below shed light on juror psychology and how to avoid this distinct danger. For a defense to be effective, timing is critically important. Plaintiff’s effort to generate anger and, in turn, irrational behavior and closed-mindedness on the part of jurors has to be addressed aggressively and as early in the trial as possible. The more that can be accomplished early in plaintiff’s case the better.


Structuring the cross-examination of plaintiff’s experts to articulate mitigating information that undermines plaintiff’s themes is critically important. Similarly, suggesting during the cross-examination facts that justify and shed a more charitable light on the corporate conduct in question has the potential to pay big dividends as the trial progresses.


The Quality of Jurors
Professor Samuel Gross from the University of Michigan outlined the "essential paradox" of expert testimony, noting that “We call expert witnesses to testify about matters that are beyond the ordinary understanding of lay people (that is both the major practical justification and a formal legal requirement for expert testimony), and then we ask lay judges and jurors to judge their testimony.” Samuel R. Gross, "Expert Evidence," W. L. Rev. 1113–1232, 1182 (1991).


Some jurors are not prone to simply accept an expert’s testimony. Instead, they tend to view experts with a great deal of skepticism. Factors that jurors in civil trials identified as important to evaluating expert credibility have been examined and analyzed. Sanja Kutnjak Ivkovic & Valerie P. Hans, "Jurors’ Evaluations of Expert Testimony: Judging the Messenger and the Message," 28 Law & Soc. Inquiry 441 (2003). Ivkovic and Hans interviewed 55 jurors from seven civil trials and developed a comprehensive model of the key factors that jurors used to evaluate expert witnesses and their testimony. The interviews were conducted as part of a larger study that examined the reactions of 269 jurors in cases with business and corporate parties. The jurors were interviewed separately and asked to give their reactions to the parties, attorneys, and evidence in the case. Id.at 452.


Seventy percent of the jurors either agreed or strongly agreed with the statement “Lawyers can always find an expert who will back up their client’s point of view, no matter what it is.” Only 10 percent of the respondents disagreed. The result supports the jurors' view of experts as hired guns. Id.


Seventy-six percent of the jurors surveyed agreed that “there’s a lot of disagreement among experts in most professions.” The jurors’ response to this question may suggest that jurors are not as gullible as one might believe. Moreover, this may show that jurors have a more positive view of the role of experts than what we would prefer to believe.


Pro-Defendant Jurors v. Pro-Plaintiff Jurors
What are the attributes of a pro-defendant juror versus a pro-plaintiff juror? A pro-defendant juror will not be influenced by the plaintiff’s attorney’s gamesmanship. He or she will show an open mind and will be skeptical of posturing. In our justice system, the pro-defendant juror is willing to follow the rule of law. The jurors in the study who showed the greatest suspicion of experts also believed that there were many illegitimate lawsuits. Jurors who had a more cynical point of view, or who regularly doubted the fairness of the world, also seemed to be more dubious about the expertise claims of professionals. Id.


On the flip side are pro-plaintiff jurors. Jurors who see themselves as efficacious and view the world as a basically agreeable place are more likely to grant legitimacy to claims advanced by litigants and, in turn, be more supportive of a plaintiff’s expert witness. Other pro-plaintiff juror characteristics include individuals who believe that the world has treated them poorly or those who view themselves as socially and economically vulnerable.


Jurors’ Characterizations of Good and Bad Expert Witnesses
Ivkovic and Hans’s study also analyzes the ways in which jurors characterized good and bad expert witnesses. Id.at 455. The jurors’ responses showed that being a good expert did not solely depend on only one characteristic. As the following examples show, a number of characteristics must blend together.


In a medical malpractice case that featured conflicting expert testimony, several jurors explained why they trusted one medical expert more than the other.


  • “She had backup documents to go along with everything she was saying.” Id.
  • “She seemed to me a very intelligent person. She was the one I felt was the most credible.
  • “She was able to field the answers very well from the defendants and to have information to prove that what she was saying was the way it was…I put more credibility in what she said.” Id. at 456.

Several jurors in another cases evaluated one medical doctor as being an extremely good expert witness. The jurors listed the following as being characteristics of a good expert witness:


  • “He was just excellent and convincing, he could speak to the court and the jury in lay terms. . . . He really made things very clear.” Id.
  • “He was so interesting. He explained everything to us at our level, at a layman’s level. He was an excellent teacher. We could understand, so it really helped.” Id.

The following are examples of characteristics of bad expert witnesses:


  • “The economist . . . was really deep and really boring, but you could tell from his testimony that he was definitely being paid by the plaintiffs.”
  • “The surgeon . . . he was a disaster . . . because he got flustered and would have to ask for questions to be repeated, which . . . was just a stalling technique because the questions were turning the screw and putting him very much on the defense.”

An expert may be labeled as a bad witness because of the lawyers too. In one case, a
juror complained that the lawyers in the case did not explain the connection of the expert’s testimony to the case. Several jurors in another case reported that one expert, an economist, whose analysis was supposed to help the jury determine the award, experienced serious problems because the lawyers did not provide all of the information to him.


Conclusion
Throughout every trial, jurors are always searching for the essential meaning contained within the evidence, arguments of the attorneys, and the expert witnesses’ interpretation of the facts and their opinions regarding the key issues of the case. It is thus imperative that an effective cross-examination of a plaintiff’s expert witness debunk the expert’s credibility. Defense counsel must create an atmosphere during cross-examination that enhances the likelihood the jury will discount the plaintiff’s expert’s testimony by showing that the expert’s opinions are flawed, the expert does not know the facts of the case, the expert is biased, and finally, the expert is not considering applicable standards.


Experts who are willing to reach a firm conclusion are deemed more readily believable by jurors. Therefore, it is important to establish that the expert’s methodology and opinions are not generally accepted in the discipline involved. This can be decisive at the trial level or on appeal.  


Joseph M. Hanna is with Goldberg Segalla LLP in Buffalo, New York.


Part two of this article will be featured in the next issue of Minority Trial Lawyer and will address expert characteristics, jurors' impressions of expert witnesses, and strategies for attacking experts' credentials.


 
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