By Dr. Ken Broda Bahm:
For those trained in the sciences, relying on illustrations or examples is not considered nearly as good as relying on data. If they call something “anecdotal,” then there is a good chance that the word “merely….” precedes it, and the adjective is being used to play down the point. From a substantive perspective, there is good reason for suspicion. An example is susceptible to being cherry-picked in an unrepresentative manner, and conclusions grounded in examples are not valid when contrasted with conclusions grounded in systematic comparisons, experiments, or other analyses of the broader data. But from a communication perspective, there is an important role for the anecdote. To the listeners, it makes the point accessible and real.
This bears on the educational mission of the expert witness. One study (Bornstein, 2004) found in the context of a personal injury mock trial that the defendant was more likely to receive a favorable verdict when the defense expert used anecdotal case histories rather than when the expert presented experimental data. The reason why is found in the concept of “truthiness” or the “illusory truth effect” (Newman et al., 2020): Cognitive fluency, or the ease in processing something, is one of the strongest shortcuts that people typically use in deciding that something is likely to be true. Briefly put, if it is easy to think about and to understand, then it is also more credible, and an example is easier to process than an analysis of data. Of course, well-grounded and effective experts should use both. In this post, I will share a few ideas for using anecdotal information in order to make the broader analysis easier for jurors to digest.
Illustrate Your Process
We are past the days, if they were ever here, when we can expect jurors to accept a conclusion simply because a credentialed expert is offering it to them. Experts need to be teachers, and as your fifth grade math teacher emphasized, that means “show your work.” Naturally, it is hard to teach the full process because your jurors are not experts in the field. But there are ways to use anecdotes or examples to illustrate the process. For example, in one case, my team needed to illustrate a situation involving crop loss over several farms, several crops, and several years, due to several causes. At the abstract level, it was hard to take in. But the expert illustrated by picking one crop on one farm for one season in order to show them the steps he took on that analysis.
Illustrate Your Conclusions
In addition to getting jurors to understand your process, the main goal is for them to accept your conclusions. Examples can help with that as well. For instance, a company trying to claim future losses can make those losses appear more real by playing out the likely scenario by which those losses would occur. Alternately, a defendant aiming to keep the damage figures down might emphasize various recovery scenarios. To the extent that an expert can make them part of what was relied on in forming an opinion, the stories of other similarly situated individuals or organizations can end up being very salient and memorable to jurors.
Find the Story in Your Testimony
Ultimately, listeners gravitate toward the concrete because it fits with the ways we learn through stories. I have written before about research showing that scientific conclusions generally are more influential when they are presented in a narrative form. So the main takeaway for experts who want to be not just correct but also effective is to find the story in their testimony. It may be just a single nugget of story that illustrates an important part of the analysis or the conclusion. Alternately, it could be the main driver of the structure of the testimony: An overarching story arc of facing a problem, trying to solve it, testing various solutions, and then ultimately arriving at a conclusion.
When experts fall back on their training to say that the data should speak for itself, and telling stories doesn’t feel like “true science,” they are correct in a way, but they’re also missing part of the mission when it comes to testifying. The goal is not just to present the analysis and the results, but to also make it comprehensible and influential to your lay audience of jurors.
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Other Posts on Expert Testimony:
- Countering the Bad Expert: Don’t Expect Jurors to Deliberate Past the BS on Their Own
- Experts: Testify Remotely Without Losing Influence
- Avoid ‘Glass Houses’ Arguments When Comparing Experts
Bornstein, B. H. (2004). The impact of different types of expert scientific testimony on mock jurors’ liability verdicts. Psychology, Crime & Law, 10(4), 429-446.
Newman, E. J., Jalbert, M. C., Schwarz, N., & Ly, D. P. (2020). Truthiness, the illusory truth effect, and the role of need for cognition. Consciousness and Cognition, 78, 102866.