By Dr. Ken Broda Bahm:
In a research article now available The Jury Expert (Valez, Neal & Kovera, 2016), three experts in trial psychology provide an overview of the research on persuasion relating to expert witness testimony. For experts and those who hire them, the article along with several responses which follow the article are worth a close read. Without focusing on the citations and the specific study descriptions (which are all available online without cost in the original article), the bottom line conclusion is that expert witnesses, as actors within a process of legal persuasion, should account for both of the broad ways that persuasion is known to operate. They should adapt to persuasion following the “central route,” of attention to and comprehension of the whole message, focusing on reasons not on external cues like the manner of presentation. And they should adapt to persuasion following the “peripheral rote” of attention toward the more superficial aspects that attend a message, or based on mental shortcuts known as “heuristics.” Different individuals might prefer one route more than the other, or more commonly the two routes might be intertwined with individuals using a mix of both core traits and peripheral cues to evaluate the testimony. Ultimately, experts need to care about both the candy coating as well as that all important Tootsie center.
Now, there are two ways experts might bristle at that advice (and not just at the Tootsie Pop analogy). First, they could say, “My role is not to persuade. It is to provide informed and qualified opinions, and it is the lawyer’s job to apply that to the case facts, and the jury’s job to decide if they are influenced by it or not.” There is some truth to that, of course, and a good expert witness ought to be a teacher, not a preacher. But that good teacher should also leave her students with the belief that her analysis is better than the competing analysis. That means that one function of an expert is to convey an influential message. The second way an expert might bristle at that is to say, “Nothing should matter but the core of testimony: It is the opinion and the reasons behind it that matter, not the way it is delivered, whether I smile, or how I sit in the witness box.” Fair enough, but as long as testimony is delivered to human judges and juries, and not to rational-legal robots, both the contents as well as the packaging are going to matter, to at least some extent. In this post, I’ll boil down the key takeaways from the research supplemented by some of my own comments on expert testimony.
You Want to Be…
The peripheral route as applied to expert testimony boils down to the four or five parts of what has come to be known as the “Witness Credibility Model.”
Likeable
We are more persuaded by likable witnesses, meaning that the expert should use a conversational tone, be pleasant, not stressed, well-mannered and respectful to all. The expert should use plain and accessible language, and yes, the expert should smile at appropriate times. It is an unfair research finding, but a finding nonetheless: This is particularly true when the expert is a woman.
Confident
Confidence is a common external cue to see whether someone feels they’re right or not. Confidence is attractive. In experts, interestingly enough, it is medium confidence that is best, not high or low confidence. Too much confidence can be read as arrogance. Experts, of course, are there to be a kind of “know-it-all,” but shouldn’t convey that you think that of yourselves. Still, y0u should be assertive, should avoid hesitancy and too much qualification, and should not be led by counsel.
Knowledgeable
An expert possesses knowledge that the average person does not have, and it is important to meaningfully convey that understanding and expertise during your testimony. In another example of a research finding that seems to be consistent but not really fair, this is another factor that seems to be particularly important when the expert is a woman.
Experienced
Experience is technically not part of the Witness Credibility Model, but in practice, jurors and judges seem to value experience as a component of knowledge that is worth mentioning on its own. The fact finders want to know that the expert is not just credentialed, but also has the on-the-ground experience necessary to practically understand the field of testimony and to back up the opinions being offered.
Trustworthy
As a final peripheral cue, the witness needs to be perceived as trustworthy. That can be an ambiguous quality, but for an expert, it should mean not acting like a blindered advocate, and not being combative or disrespectful to the other side. Instead, the expert witness should work on communicating in an open and honest way, conveying that he is giving due consideration and weight to opposing opinions.
And, You Want to Provide…
Ideally, the right choices on the peripheral cues help to ensure that jurors or judges are able to get past any distractions and focus on the core components of your testimony that should be the main course when it comes to influence.
Comprehension
Your fact finders have to understand you and to be confident in that understanding. To make it not just possible to follow, but easy to follow, walk jurors through the process in the manner of a good teacher. Use visual aids, show your work, and tell a story of how you arrived at your conclusions. Using low complexity language also makes it less likely that jurors will rely on external cues, like how much a witness is paid, for example.
Connection
As the authors note, the effective expert needs to “go beyond simply providing research information by linking it to the case facts.” Treating the testimony as stand-alone abstract knowledge, and believing that it is the attorney’s job or the jury’s job to make those connections, leaves it too much to chance. The more concrete the expert is able to be, the better, and that means starting with the central problem jurors need to answer, and then explaining how your analysis helps them solve that problem. As John Gilleland writes in his response article, attorneys should explicitly ask for the nexus: “…now how does that relate to this case, to the facts this jury has heard…?”
Comparison
In our system, experts typically don’t stand on their own, but are instead framed in competitive ways with the other side’s experts. These competing experts can lead to a “skepticism effect” in which jurors feel the experts cancel each other out. In that case, jurors will bring their own knowledge or beliefs to resolve the issue. To come out on top, the influential expert needs to avoid this perception of false equivalency and give jurors clear reasons why she is better. Jurors don’t tend to be naturally sensitive to methodological issues and flaws, so the questions and answers need to do the work of effective teaching. The more the expert and the direct and cross-examinations can be explicitly comparative rather than just descriptive, the more engaging that testimony will be, and the less likely jurors will be to consider it a draw.
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Other Posts on Expert Testimony:
- Expert Witnesses: When Criticized, Don’t Just Respond, Riposte!
- When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)
- Fight False Equivalency Among Experts
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Valez, R. E.; Neal, T.M.S., and Kovera, M. B. (2016). Juries, Witnesses, and Persuasion: A Brief Overview of the Science of Persuasion and Its Applications for Expert Witness Testimony. The Jury Expert 28: 2 (Winter). URL: http://www.thejuryexpert.com/2016/12/juries-witnesses-and-persuasion-a-brief-overview-of-the-science-of-persuasion-and-its-applications-for-expert-witness-testimony/
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