By Dr. Ken Broda Bahm:
By now, it is familiar advice to trial lawyers: Tell a story. Jurors and judges will appreciate the familiar structure, pay greater attention, see the world from your party’s perspective, and have an easier time remembering and using the information. We might think that the advice applies to attorneys, especially during opening statements — and it does. But it doesn’t end there. Rather than being just a handy technique for organizing the attorney’s first presentation, the narrative is a paradigm for how people learn new information and use it. So the advice to “Tell a story” applies in settings wherever people are being taught new information. An expert witness’s trial testimony is one such setting.
Scientific experts, whether talking about chemistry, design, medical care, or economics, can be hard to follow. Not only is there the unfamiliarity of the scientific language, but jurors and other fact finders often lack a basic understanding of the method and the process as well. Present that in the wrong style — a style that assumes motivation and attention, for example — and it is easy for your audience to shut off. One thing that helps is to frame the unfamiliar science in the familiar structure of the story. A recent study of published scientific literature (Hillier, Kelly & Klinger, 2016) looks at 700 scientific papers on climate change, asking what factors in a crowded literature made some papers more influential than others. What they find is that those papers written in narrative style are more likely to be used and cited in other publications. First author, Annie Hilliar, wrote in a ScienceDaily release,”The results are especially surprising given that we often think of scientific influence as being driven by science itself, rather than the form in which it is presented.” But when it comes to comprehension and influence, form does matter. Science presented in story form made for a more influential contribution. The expert in trial is not interested in being cited, but does want to be used — by a jury later in deliberations, for example. So rather than following an analytic outline that blandly covers credentials, methods, and conclusions, it is better to turn the testimony into a tale of sorts. In this post, I will break down the steps and provide an example of what this means.
Story means more than just sequence, and requires more than just following a timeline or interspersing an “and then…” throughout your message. Instead, a story requires the presence of a handful of structural elements that we have come to expect. That story structure helps in providing some recognizable landmarks in your message.
For each of the components below, I will include an example that was used by an expert I prepared in a past case. The expert, an economist, testified on damages as well as causation on behalf of a products liability plaintiff in a suit over long-term damage caused by an agricultural chemical.
Setting
A scene or situation creates a framework where the action takes place. In scientific testimony, that framework can be the field of scientific inquiry, or it can be a situation giving rise to the challenges addressed by the expert testimony.
Example: In the agricultural chemical case, the setting is a field — a literal field of crops. That field includes the chemical found to have unexpected long-term effects on crops, but it also includes every other factor that determines yields: water levels, sun and temperature, pests, normal plant diseases.
Character
The main character in the drama is not necessarily the hero scientist. It could be, but it could also be more abstract: a central idea or concept.
Example: The white whale for the agricultural economist was the idea of “unique losses:” reductions in yields that are beyond what is normal and expected at a typical farm.
Conflict
Every story needs some kind of tension: a challenge to be addressed, a mystery to be solved, or a who-done-it to be answered.
Example: For each farm and field, the unique losses need to be found. They need to be identified, quantified, and known to be truly unique and beyond the norm. In the process, the expert can’t make assumptions and can’t blame all losses on the culprit chemical, because that falls into the other side’s story and opposing expert’s critique.
Resolution
What brings completeness and closure to a story is a solution to the problem, and that solution is also what makes the expert’s story relevant and useful.
Example: The agricultural economist used historical records and statistical tools, like regression, to control for the other factors: the normal effects of climate, weather, pests and disease. What you are left with after accounting for all of that is the otherwise unexplained effect of the defective chemical.
Moral
Example: Either implicitly or explicitly, a complete story often comes with a moral: a boiled-down message or takeaway that does not depend on full recitation of details, but instead states the point simply.
Example: For the economist, the message is “the process of elimination.” After accounting for all of the usual suspects for why a particular farm or field would perform less effectively than its average, the loss that is leftover is what can be reasonably attributed to the chemical.
It is not enough for those elements to be just present in the testimony if one takes the time to analyze it in that fashion. Instead, they need to be brought out and linked together in story fashion. Direct examination should start by setting the scene, then move to identifying the central actors and framing the conflict, before finally moving to a resolution and a moral. That isn’t just a matter of art, based on the research, it’s a matter of practical advantage.
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Hillier, A., Kelly, R. P., & Klinger, T. (2016). Narrative Style Influences Citation Frequency in Climate Change Science. PLOS ONE, 11(12), e0167983.
Image credit: 123rf.com, used under license, edited.