The March 2014 issue of Plaintiff Magazine discussed the secret in turning a jury of common people into smart alecs on complex medical or science concepts.
The key to capturing the attention of lay people on specialized or unfamiliar subjects is in the direct examination of experts. During direct examination, begin by establishing the credibility of an expert. To do so, meet the requirements of the Evidence Code in the state or federal jurisdiction. In California, for example, the Evidence Code requires an expert to be with “special knowledge, skill, experience, training and education” to render an opinion if the subject matter is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”
The expert’s testimony should include the explanations behind the opinion because jurors are normally not physicians or scientists. In California, after hearing from experts, jurors are read jury instruction, CACI 219: “During the trial you heard testimony from expert witnesses. The law allows an expert to state opinions about matters in his or her field of expertise even if he or she has not witnessed any of the events involved in the trial.
You do not have to accept an expert’s opinion. As with any other witness, it is up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision. You may believe all, part, or none of an expert’s testimony. In deciding whether to believe an expert’s testimony, you should consider:
a. The expert’s training and experience;
b. The facts the expert relied on; and
c. The reasons for the expert’s opinion.”
Usually at trial, both parties introduce experts who may render opinions that oppose each other. In California, the judge will instruct the jury under CACI 221: “If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters that each witness relied on. You may also compare the experts’ qualifications.”
When jurors have no subject matter understanding of medicine or science, they will have hardship in deciding which experts to believe. To make the decision process easier, draw on their experiences when eliciting expert testimony. According to the Plaintiff Magazine article, this means: (1) get and keep the jurors’ attention, (2) answer unspoken questions, (3) inspire and satisfy curiosity, and (4) help the expert make the complex easy.
To grab attention, decrease the length of the expert’s qualifications. Then satisfy curiosity by giving examples on why the jury should listen such as showing a medical malpractice expert knows about heart surgery on children by asking how many surgeries the expert performs each year, whether he or she teaches others on how to do surgeries, and the books the person has written. Satisfy the jury’s suspicion on the expert’s opinion by giving the real basis of the opinion through a step by step protocol that ends up at the logical conclusion. Use analogies to simplify the complicated.
When an expert witness establishes credibility, gains the trust of the jurors, and explain the complicated in a way that is understandable, a party’s probability of success at trial increases.