News
Litigation
Feb. 19, 2002
Potion for Persuasion
Dicta Column - By Linda D. Kornfeld - A major dilemma that faces trial attorneys with complicated cases involving significant damages is how to tell a story that the jury will understand and accept. Inevitably, part of the story will be told by financial and other experts who rely upon complicated and usually uninteresting documents.
Dicta Column
By Linda D. Kornfeld
A major dilemma that faces trial attorneys with complicated cases involving significant damages is how to tell a story that the jury will understand and accept. Inevitably, part of the story will be told by financial and other experts who rely upon complicated and usually uninteresting documents. The challenge for the attorney is to persuade the jury to like, believe and ultimately agree with the expert, which usually requires that the jurors be interested in and understand the documents that support the expert's opinion. Successfully responding to this challenge requires carefully considered document presentation methods.
It is critical that experts, and especially those that testify about damage calculations, are more likable and believable than the adversary's experts. Jurors' first impressions of an expert come from the expert's curriculum vitae on direct examination. When deciding upon which expert to retain, attorneys should consider the expert's qualifications, background experience and other qualities that could sway a jury.
For example, if the expert previously testified in a high profile case or was involved in an important community or political issue, the jury may be more interested in hearing the expert's testimony. On direct examination, therefore, the expert's endearing qualities should be developed. Of course, until the jury is picked, an attorney cannot know with precision which qualities should be discussed.
Moreover, the expert should try to testify in plain, easy to understand language and in a personal fashion, so that the jury can relate to the expert. Having an expert relay numbers and dry mathematical calculations with a sense of personality can be difficult. Therefore, the expert should try to relate some of the explanations to common, everyday situations or prior experiences that might be interesting to the jury. For example, the expert could compare accounting techniques to family budgeting problems or situations in the news, which might not be difficult to do today, when accounting practices are making headlines.
The time spent qualifying the expert also should be geared to keeping the jury's interest. If excessive time is spent on it, a jury could become bored or believe that the expert is too theoretical to have much practical experience. Also, if too much emphasis is put on an expert's academic credentials, a jury might believe that the expert is out of touch with reality, based on the notion that those who can, do, and those who can't, teach.
The best expert examination is one that causes the jury to both respect and relate to the expert, which increases the likelihood that the jury will adopt the expert's opinions. The expert should therefore try to come across as confident and capable of opining about the matter but never as arrogant.
Another difficult hurdle to presentation of expert testimony, particularly in the context of complicated damages calculations, is how to communicate the expert's opinion in a way that the jury will understand. Use of real life examples often can be effective. For example, if the matter involves determining how many millions of dollars the plaintiff's company was defrauded, the expert could compare the calculation method to credit card fraud and its impact on an individual's credit rating. Preparation is critical. The attorney must spend time with the expert to ensure that the testimony is stated correctly.
Of course, the makeup of the jury often will influence the examples that are used. Where the jury is fairly diverse in its background and sophistication, use of examples that appeal to the "lowest common denominator" can be offensive and condescending. Thus, present the testimony in a manner that appeals to the greatest majority of the jury.
Where documents are necessary to increase the impact of the expert's testimony, present them in a way to bolster their influence. The many options include: handing the jury a document and guiding them through it, using traditional overhead projectors, using overhead "Elmo" projectors, which project documents onto a screen, putting computerized images onto a screen and using blowups of documents. Although the expense could dictate the method chosen, try to choose one that allows the attorney to highlight the relevant part of any given document.
When presenting highlighted portions, it is important to focus on only those words and numbers that are most critical. If too much content is emphasized, the effect is lost. And it is important that a jury not be forced to grasp unfamiliar concepts while having to strain to read print that is too small or distant.
Attorneys never should feel constrained to use only one method of document presentation. Studies show that the average person has a limited attention span. In a matter where numerous documents will be used during an expert's testimony, the risk of losing the jury's interest is significant, no matter how interesting the documents. Thus, attorneys should consider varying the methods of presentation.
The lawyer also must be sure that the document will be shown to the jury and/or admitted into evidence. An effective direct examination can be destroyed if the attorney must spend time during direct examination figuring out how to get the relevant document, or portion thereof, before the jury.
With respect to documents that require review of the entire document, the attorney should ask the court for permission to hand copies of the document to the jury. When only small portions are relevant, however, the attorney could consider some combination of blowups and onscreen presentation.
Linda D. Kornfeld is a commercial trial practice partner in the Century City office of Howrey Simon Arnold & White.
By Linda D. Kornfeld
A major dilemma that faces trial attorneys with complicated cases involving significant damages is how to tell a story that the jury will understand and accept. Inevitably, part of the story will be told by financial and other experts who rely upon complicated and usually uninteresting documents. The challenge for the attorney is to persuade the jury to like, believe and ultimately agree with the expert, which usually requires that the jurors be interested in and understand the documents that support the expert's opinion. Successfully responding to this challenge requires carefully considered document presentation methods.
It is critical that experts, and especially those that testify about damage calculations, are more likable and believable than the adversary's experts. Jurors' first impressions of an expert come from the expert's curriculum vitae on direct examination. When deciding upon which expert to retain, attorneys should consider the expert's qualifications, background experience and other qualities that could sway a jury.
For example, if the expert previously testified in a high profile case or was involved in an important community or political issue, the jury may be more interested in hearing the expert's testimony. On direct examination, therefore, the expert's endearing qualities should be developed. Of course, until the jury is picked, an attorney cannot know with precision which qualities should be discussed.
Moreover, the expert should try to testify in plain, easy to understand language and in a personal fashion, so that the jury can relate to the expert. Having an expert relay numbers and dry mathematical calculations with a sense of personality can be difficult. Therefore, the expert should try to relate some of the explanations to common, everyday situations or prior experiences that might be interesting to the jury. For example, the expert could compare accounting techniques to family budgeting problems or situations in the news, which might not be difficult to do today, when accounting practices are making headlines.
The time spent qualifying the expert also should be geared to keeping the jury's interest. If excessive time is spent on it, a jury could become bored or believe that the expert is too theoretical to have much practical experience. Also, if too much emphasis is put on an expert's academic credentials, a jury might believe that the expert is out of touch with reality, based on the notion that those who can, do, and those who can't, teach.
The best expert examination is one that causes the jury to both respect and relate to the expert, which increases the likelihood that the jury will adopt the expert's opinions. The expert should therefore try to come across as confident and capable of opining about the matter but never as arrogant.
Another difficult hurdle to presentation of expert testimony, particularly in the context of complicated damages calculations, is how to communicate the expert's opinion in a way that the jury will understand. Use of real life examples often can be effective. For example, if the matter involves determining how many millions of dollars the plaintiff's company was defrauded, the expert could compare the calculation method to credit card fraud and its impact on an individual's credit rating. Preparation is critical. The attorney must spend time with the expert to ensure that the testimony is stated correctly.
Of course, the makeup of the jury often will influence the examples that are used. Where the jury is fairly diverse in its background and sophistication, use of examples that appeal to the "lowest common denominator" can be offensive and condescending. Thus, present the testimony in a manner that appeals to the greatest majority of the jury.
Where documents are necessary to increase the impact of the expert's testimony, present them in a way to bolster their influence. The many options include: handing the jury a document and guiding them through it, using traditional overhead projectors, using overhead "Elmo" projectors, which project documents onto a screen, putting computerized images onto a screen and using blowups of documents. Although the expense could dictate the method chosen, try to choose one that allows the attorney to highlight the relevant part of any given document.
When presenting highlighted portions, it is important to focus on only those words and numbers that are most critical. If too much content is emphasized, the effect is lost. And it is important that a jury not be forced to grasp unfamiliar concepts while having to strain to read print that is too small or distant.
Attorneys never should feel constrained to use only one method of document presentation. Studies show that the average person has a limited attention span. In a matter where numerous documents will be used during an expert's testimony, the risk of losing the jury's interest is significant, no matter how interesting the documents. Thus, attorneys should consider varying the methods of presentation.
The lawyer also must be sure that the document will be shown to the jury and/or admitted into evidence. An effective direct examination can be destroyed if the attorney must spend time during direct examination figuring out how to get the relevant document, or portion thereof, before the jury.
With respect to documents that require review of the entire document, the attorney should ask the court for permission to hand copies of the document to the jury. When only small portions are relevant, however, the attorney could consider some combination of blowups and onscreen presentation.
Linda D. Kornfeld is a commercial trial practice partner in the Century City office of Howrey Simon Arnold & White.
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