Yearly Archives: 2018

Is That Expert as Great as You Think?

A great deal of work goes into preparing an expert witness for trial. Typically, there are many hours of discussion and preparation before an expert ever sits for a deposition or submits an expert report. But often, most of those hours are spent with only one or two attorneys. And equally as often, those attorneys played a role in “discovering” or “acquiring” the expert. Unfortunately, the resulting relationship can make it difficult to see the expert’s weaknesses until they are exposed in deposition or in trial.

Finding a great expert isn’t easy and no witness is perfect, but for an expert witness to be helpful, they must be persuasive enough to overcome any “issues” they come with. Most of us understand that a multitude of things—from demeanor to financial bias to previous testimony—can undermine an expert’s credibility. But that somehow doesn’t prevent the all-too-common situation of either 1) working up an expert for a very long time before realizing that he/she will never be trial ready or 2) producing an expert at trial only to have his/her testimony go south.

More times than we care to admit, we have heard great things about experts only to meet them close to trial and discover a problem that is insignificant to attorneys, but will be glaring to jurors. And too often, at that point, it is too late in the process to make a change. But why is it so difficult for attorneys to predict an expert’s probability of success early on? Because jurors and attorneys evaluate experts differently.

Attorneys begin their search with an end in mind. And while they may not directly guide the expert’s opinions, they definitely seek out experts who are going to be case-friendly. (Of note, these experts are often found because they’ve had a financial relationship with the defendant previously or they are known to be a big user/prescriber of their products.) Jurors, on the other hand, are starting out with a different—and unfortunately, sometimes opposing—perspective. This makes it is imperative to have someone on the outside cast their eyes on an expert early in the process. Neither we—nor our clients—have ever regretted that we met with an expert early in the process. But on many occasions, we have had to be the bearers of very bad news about an expert’s ability to be an effective witness after countless billable hours were spent preparing him.

Because experts are usually such an integral part of your case and because a great deal of time and money goes into finding and preparing an expert, we’ve rarely seen clients more upset than when they realize that an expert who has been worked up for years cannot be used because of an issue that has previously been discounted. Or even worse, when something in an expert’s background or opinions negatively affects the outcome of a case. While this is not an uncommon problem, it is one that can be resolved by taking the right precautions. Because it’s never too early to learn that an expert will not be a great witness at trial.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Don’t Dismiss Erring Mock Jurors So Quickly

Almost any attorney who has participated in a mock trial can provide an example of a mock juror’s off-the-wall logic or fundamental misunderstanding of the case facts. Unfortunately, a common reaction to such mock jurors can be skepticism of their worth and dismissal of their arguments. But simply dismissing arguments made by mock jurors because they don’t seem reasonable to you is one of the biggest mistakes you can make during trial preparation.

Inevitably, when mock jurors deliberate, attorneys are drawn to the jurors who agree with them and annoyed by the jurors who argue for the opposing side. While this is a natural and unavoidable instinct, it is also an instinct that should be quickly suppressed if you want to learn all that you can from the jury exercise. Commonly, if jurors are confused on a particular issue, they are dismissed as unintelligent or inattentive. And if they adopt the arguments for the other side, it is viewed as a lack of understanding on their part (“if they understood it, they would side with me”). But these biases toward your own case can easily stand in the way of you getting the most value from the mock trial.

The first step in countering those biases is understanding the faulty logic behind them. Once you’ve become familiar with a case, it’s easy to forget how challenging it was to sort out at the beginning, and you can develop tunnel vision. Most legal and case-specific concepts are not notions that jurors encounter in their daily lives. Not only should it not be surprising if jurors don’t immediately understand something, but it should alert us to the things that need to be explained more often or more clearly. Additionally, no matter how strongly you advocate for your side, we should never assume that a reasonable person won’t be persuaded by the opposing side.

In fact, the greatest value of a mock trial comes from understanding the jurors who voted against you. Paying careful attention to the jurors who weren’t persuaded by your case allows you to ask the most important questions for trial preparation: What attracted them to the other side? What made the opposing arguments work? What holes did they see in your arguments? What facts were they legitimately confused by and how can that confusion be cleared up?

So while mock jurors may bring up points that seem illogical or nonsensical to you, be mindful that 1) any points that caused them confusion are likely to confuse real jurors as well, 2) it may not be that they don’t understand your argument; rather, they just don’t buy it, 3) their thought processes may be more widely-held and common that you would like to believe. Taking seriously what opposing jurors have to say allows you to shore up your case’s weaknesses and avoid surprises at trial. And if there is anything we can all agree on, it is that clients hate surprises at trial.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Is Trump Changing How Juries Think?

For years, attorneys have questioned jurors about their political affiliation and tried to intuit how that affiliation would color their view of the case at hand. But political preference alone has never been a good indicator of juror leanings. Despite the persistent belief that a jurors’ political party must be a strong verdict predictor, no research has borne out that belief. Instead, studies have always shown jurors to be much more defined by their long-standing attitudes and experiences than by their party affiliation. But are times changing in that regard? Has the current political climate created a shift in juror thinking?

In some ways, the answer to those questions is “yes.” Although juror value systems and life experiences remain the best predictors of their verdict decisions, jurors aren’t making those decisions in a vacuum. Because verdict decisions are made within a group, we must pay special attention to factors that groups will be especially sensitive to or find particularly divisive—and currently, there are few topics more divisive and pervasive than President Trump. If you go to any news story that is not about President Trump—hip implants, the opioid epidemic, the #MeToo movement, or even the birth of Kim and Kanye’s new baby—and look in the comments section, you will find explicit references to President Trump, sometimes in the first few comments, with others joining in on either side in a loud and uncivil chorus.

As a result of the political polarity in our country and the constant inundation of political accusations, President Trump has come to represent certain things to certain people—supporting or denouncing him is shorthand for a person’s political identity. That kind of shorthand is very accessible to jurors as schemas or heuristics when processing information. And because politics are currently such a hot topic, they may be the first thing that will come to many jurors’ minds as they generate examples or analogies. Once politics enter the discussion, it is easy for jurors to fall back on their political prisms, divide along those lines and become entrenched in that thinking. This not only prevents them from processing and analyzing the case as they normally would, but it makes juror behavior more unpredictable and jury selection much more difficult.

So how do we deal with the fact that while political beliefs don’t inform jurors’ decisions on the case, they are notions that jurors are so heavily invested in right now that they control where their alliances fall and therefore, potentially affect case outcomes? Below are some recommendations:

-Don’t make any political references regardless of how harmless they may seem.

-Be wary of any juror who spontaneously mentions Trump or politics in jury selection in response to non-political questions.

-Research whether the case has aspects that draw political comparisons and see how those comparisons affect deliberations.

-Appeal to jurors’ fundamental—not political—beliefs and focus on how the opposing side’s behavior violated those beliefs. This will encourage jurors to make decisions based on their sense of justice—not based on political allegiances.

While political affiliation was previously an ineffective shortcut used by attorneys to categorize jurors, it has now become a minefield that must be trod with great care. As the country has become more divided along political lines, those topics have the power to derail almost any discussion. Because deliberations involve a group of diverse and unfamiliar people, they are particularly susceptible to this phenomenon—and we must take deliberate steps to keep those discussions on track.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

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